\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America; State of California; State of Colorado; State of Connecticut; State of Delaware; District of Columbia; State of Florida; State of Georgia; State of Hawaii; State of Illinois; State of Indiana; State of Iowa; State of Louisiana; State of Maryland; Commonwealth of Massachusetts; State of Michigan; State of Montana; State of Nevada; State of New Jersey; State of New Mexico; State of New York; State of North Carolina; State of Oklahoma; State of Rhode Island; State of Tennessee; State of Texas; Commonwealth of Virginia; And State of Wisconsin, Ex Rel. Mark McGuire, Wendy Johnson, and Ryan Uehling, Plaintiffs, v. MILLENIUM LABORATORIES, INC., Millenium Laboratories of California, Inc.; James Slattery ; Howard Appel, Defendants. Mark McGuire, Cross-Claimant, Appellant, Estate of Robert Cunningham; Ryan Uehling; Omni Healthcare Inc.; Amadeo Pesce; John Doe A/K/A Craig Deligdish, Cross-Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1106\n\n UNITED STATES OF AMERICA; STATE OF CALIFORNIA; STATE OF\n COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF\n COLUMBIA; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII;\n STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF\n LOUISIANA; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS;\n STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEVADA; STATE OF\n NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF\n NORTH CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE\nOF TENNESSEE; STATE OF TEXAS; COMMONWEALTH OF VIRGINA; and STATE\n OF WISCONSIN, ex rel. MARK MCGUIRE, WENDY JOHNSON, and\n RYAN UEHLING,\n\n Plaintiffs,\n\n v.\n\n MILLENIUM LABORATORIES, INC., MILLENIUM LABORATORIES OF\n CALIFORNIA, INC.; JAMES SLATTERY; HOWARD APPEL,\n\n Defendants.\n\n\n MARK MCGUIRE,\n\n Cross-Claimant, Appellant,\n\nESTATE OF ROBERT CUNNINGHAM; RYAN UEHLING; OMNI HEALTHCARE INC.;\n AMADEO PESCE; JOHN DOE a/k/a CRAIG DELIGDISH,\n\n Cross-Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\n\f Before\n\n Torruella, Lynch, and Thompson,\n Circuit Judges.\n\n\n Michael Tabb, with whom Thomas M. Greene, Ryan P. Morrison,\nand Greene LLP were on brief, for appellant.\n Michael B. Bogdanow, with whom Robert Foster and Meehan,\nBoyle, Black & Bogdanow, P.C. were on brief, for appellees.\n\n\n May 6, 2019\n\f LYNCH, Circuit Judge. The False Claims Act (FCA), 31\n\nU.S.C. § 3729 et seq., authorizes private persons, known as\n\nrelators, to \"bring a civil action . . . in the name of the\n\nGovernment\" against those who make fraudulent claims against the\n\nUnited States, id. § 3730(b)(1). When a relator brings such a qui\n\ntam suit, the government may intervene and proceed with the action,\n\nor it may decline to intervene and allow the relator to proceed.\n\nSee id. § 3730(b)(1)-(4), (c).\n\n The FCA encourages relators to bring qui tam suits by\n\nallowing them to share in any recovery obtained for the government.\n\nTo avoid diluting this potential payout, the FCA's first-to-file\n\nrule prohibits relators other than the first to file from\n\n\"bring[ing] a related action based on the facts underlying the\n\npending action.\" Id. § 3730(b)(5).\n\n This case arises out of the government's successful\n\nintervention in several qui tam suits against Millennium Health\n\n(formerly Millennium Laboratories). Millennium settled with the\n\ngovernment for $227 million, setting aside fifteen percent of that\n\nmoney as a relator's share. The question on appeal is who is the\n\nfirst-to-file relator and how that is determined.\n\n Mark McGuire brought a crossclaim for declaratory\n\njudgment that he is the first to file and is entitled, under 31\n\nU.S.C. § 3730(d)(1), to the fifteen-percent share. Robert\n\nCunningham, who had brought an earlier qui tam suit against\n\n\n - 3 -\n\fMillennium, moved to dismiss the crossclaim, arguing that he, not\n\nMcGuire, was the first to file. Finding that the first-to-file\n\nrule was jurisdictional, and based on its review of extrinsic\n\nmaterials outside of the complaints, the district court agreed\n\nwith Cunningham. United States ex rel. Cunningham v. Millennium\n\nLabs., Inc., 202 F. Supp. 3d 198, 209 (D. Mass. 2016). The district\n\ncourt dismissed McGuire's crossclaim for lack of subject-matter\n\njurisdiction. Id.\n\n We hold, for the first time in this circuit, that the\n\nfirst-to-file rule is not jurisdictional, reversing earlier\n\ncircuit precedent, and we hold that we have jurisdiction over\n\nMcGuire's crossclaim. We then describe the appropriate method for\n\nthe first-to-file analysis and hold that McGuire was the first-\n\nto-file relator and that he has stated a claim that he is entitled\n\nto the relator's share of the settlement. We reverse and remand\n\nfor further proceedings consistent with this opinion.\n\n I.\n\nA. The False Claims Act\n\n President Abraham Lincoln signed the FCA into law in\n\n1863. It was originally intended \"to combat rampant fraud in Civil\n\nWar defense contracts.\" S. Rep. No. 99-345, at 8 (1986). Today,\n\nthe FCA is the federal government's \"primary litigative tool for\n\ncombatting fraud.\" Id. at 2.\n\n\n\n\n - 4 -\n\f The FCA imposes liability on any person who \"knowingly\n\npresents . . . a false or fraudulent claim for payment or\n\napproval,\" 31 U.S.C. § 3729(a)(1)(A), \"to an officer, employee, or\n\nagent of the United States,\" id. § 3729(b)(2)(A)(i). A relator\n\nmay enforce the FCA by bringing a civil qui tam action \"in the\n\nname of the Government.\" Id. § 3730(b).\n\n To bring such an action, the relator must file a\n\ncomplaint under seal and must serve the United States with a copy\n\nof the complaint and a disclosure of all material evidence. Id.\n\n§ 3730(b)(2). After reviewing those materials, the United States\n\nmay \"proceed with the action, in which case the action shall be\n\nconducted by the Government.\" Id. § 3730(b)(4). Or, \"[i]f the\n\ngovernment does not exercise its right to intervene in the suit,\n\nthe relator may serve the complaint upon the defendant and proceed\n\nwith the action.\" United States ex rel. Karvelas v. Melrose-\n\nWakefield Hosp., 360 F.3d 220, 225 (1st Cir. 2004), abrogated on\n\nother grounds by Allison Engine Co. v. United States ex rel.\n\nSanders, 553 U.S. 662 (2008).\n\n The FCA entitles the relator to a portion of any\n\nresulting judgment or settlement. Before the 1986 amendments to\n\nthe FCA, the relator's share in a case in which the government had\n\nintervened was capped at \"10 percent of the proceeds of the action\n\nor settlement of the claim.\" S. Rep. No. 99-345, at 41. The FCA\n\nnow mandates a relator award in such a case of \"at least 15 percent\n\n\n - 5 -\n\fbut not more than 25 percent of the proceeds of the action or\n\nsettlement of the claim, depending upon the extent to which the\n\nperson substantially contributed to the prosecution of the\n\naction.\"1 31 U.S.C. § 3730(d)(1).\n\n The 1986 amendments also added a significant restriction\n\non recoveries in qui tam suits that is relevant here: the \"first-\n\nto-file\" rule in paragraph 3730(b)(5). That paragraph provides,\n\n\"When a person brings an action under [31 U.S.C. § 3730(b)], no\n\nperson other than the Government may intervene or bring a related\n\naction based on the facts underlying the pending action.\" Id.\n\n§ 3730(b)(5). Legislative history shows that this rule was meant\n\nto \"clarify in the statute that private enforcement under the civil\n\nFalse Claims Act is not meant to produce class actions or multiple\n\nseparate suits based on identical facts and circumstances.\" S.\n\nRep. No. 99-345, at 25.\n\nB. The Complaints\n\n Because we hold that the first-to-file issue is to be\n\naddressed under Federal Rule of Civil Procedure 12(b)(6), not Rule\n\n12(b)(1), we confine our review to the pleadings and to facts\n\nsubject to judicial notice. Haley v. City of Bos., 657 F.3d 39,\n\n\n\n 1 When the government declines to intervene and the\nrelator successfully prosecutes the action, the relator may\nreceive up to 30 percent of the payout (with the remainder to the\nUnited States). 31 U.S.C. § 3730(d)(2). That is not the situation\nhere.\n\n\n - 6 -\n\f46 (1st Cir. 2011). We limit our background discussion to facts\n\nalleged in Cunningham's amended complaint, McGuire's original\n\ncomplaint, and in the government's complaint in intervention and\n\nsettlement agreement.2\n\n 1. Cunningham's Amended Complaint\n\n In late 2009 and early 2010, relator Robert Cunningham3\n\nfiled qui tam actions against five competitors of Calloway\n\nLaboratories, his employer. One competitor he sued was Millennium.\n\n Cunningham filed his first amended complaint4 against\n\nMillennium on February 24, 2011. It detailed a mechanism of fraud\n\narising from Millennium's \"Physician Billing Model,\" the key\n\ncomponent of which was Millennium's \"multi-class qualitative drug\n\nscreen,\" which Cunningham's complaint labels a \"test kit.\" The\n\ntest kit was a urine specimen collection cup with chemical test\n\n\n\n 2 Cunningham's amended complaint and McGuire's original\ncomplaint are subject to judicial notice. See Zucker v. Rodriguez,\n919 F.3d 649, 651 n.5 (1st Cir. 2019) (citing E.I. Du Pont de\nNemours & Co. v. Cullen, 791 F.2d 5, 7 (1st Cir. 1986) (Breyer,\nJ.)). And the government's complaint in intervention and\nsettlement agreement are also properly before us because McGuire\nattached them as exhibits to his crossclaim.\n 3 Cunningham died in December 2010. His estate has\ncontinued to pursue his action. For simplicity, we refer to\nCunningham and his estate as \"Cunningham.\"\n 4 Cunningham's amended complaint states, \"This First\nAmended Complaint does not add any facts to those contained in the\nOriginal Complaint; rather, it removes some of the allegations\nthat had been contained therein.\" The amended complaint's\nallegations were the only allegations \"pending\" when McGuire filed\nhis suit.\n\n\n - 7 -\n\fstrips embedded in it. This kit, which \"c[ould] be purchased for\n\nless than\" ten dollars, \"use[d] a single specimen\" collected at\n\nthe point of care to detect \"multiple drug classes.\"\n\n We described the three aspects of Cunningham's\n\nallegations in United States ex rel. Estate of Cunningham v.\n\nMillennium Labs. of Calif., Inc., 713 F.3d 662, 665-66 (1st Cir.\n\n2013). Cunningham's complaint alleged that Millennium used its\n\ninexpensive point-of-care test kits to induce physicians into\n\nexcessive billing (Aspect One), excessive testing (Aspect Two),\n\nand excessive confirmatory testing (Aspect Three).5 In Cunningham,\n\n\n 5 We describe the first two aspects more fully. Aspect\nOne: Cunningham alleged that Millennium told physicians that this\ntest kit could \"substantially increase his or her revenue.\"\nBecause the kits performed several tests at once, Millennium told\nthe physicians that they could \"bill both government and private\nhealth insurance companies\" for several drugs tests per kit. Under\nthen-current government billing codes, the physicians should have\nonly billed for one test per test kit. Cunningham alleged that a\ndocument distributed by Millennium \"suggest[ed] each physician can\nbill at least 9 units per kit.\" And Cunningham alleged that\nMillennium separately informed physicians that they should bill\n\"as many units as there are panels in the test kit.\" Cunningham\nalleged that, under this model, physicians could bill between\n$16.67 and $80 per unit and so extract per-kit revenues of between\n$173.18 to $432.\n Aspect Two: Cunningham alleged that Millennium encouraged\nphysicians to conduct excessive tests. Millennium informed\nphysicians that, if they were to order twenty tests per day, they\ncould earn up to $8,640 per day. The complaint stated that\nMillennium thus \"encourage[d] the physician to order more testing\nthan that physician would have prior to engaging in Millennium's\n[point-of-care] model, and increase[d] Millennium's market share\nby drawing other physicians to the practice with the hope and\npromise of greater revenues.\" It further alleged that\nparticipating physicians ordered \"significantly more testing for\ntheir patients since entering the conspiracy than they did prior\n\n - 8 -\n\fwe held that Aspects One and Three were jurisdictionally barred by\n\nthe FCA's public disclosure provision, 31 U.S.C. § 3730(e)(4)(A),\n\nbecause they had been \"publicly disclosed\" in a California state\n\ndefamation suit brought by Millennium against Calloway. 713 F.3d\n\nat 671. We then vacated the district court's order dismissing\n\nAspect Two of Cunningham's claim and remanded that claim for\n\nfurther proceedings. Id. at 676. On remand, the district court\n\ndismissed Aspect Two of Cunningham's claim for lack of\n\nparticularity under Federal Rule of Civil Procedure 9(b) and for\n\nfailure to state a claim under Rule 12(b)(6). United States ex\n\nrel. Estate of Cunningham v. Millennium Labs. of Cal., No. 09-\n\n12209-RWZ, 2014 WL 309374, at *2 (D. Mass. Jan. 27, 2014). That\n\ndecision is currently on appeal.\n\n Only Aspect Three is potentially relevant to the first-\n\nto-file issue here.6 Cunningham alleged that if the initial\n\nqualitative test uncovered any of the tested drugs, that test\n\n\"w[ould] need to be followed up by a quantitative screen\" and then\n\n\n\n\nto participating in the conspiracy with Millennium.\" The alleged\nfraud consisted of Millennium's promotion of this billing model\nand physician defendants' misrepresentation of the medical need\nfor the tests performed.\n 6 McGuire argues, based on Campbell v. Redding Medical\nCenter, 421 F.3d 817 (9th Cir. 2005), that because we found Aspect\nThree to be jurisdictionally barred, it does not count as a\n\"pending\" claim for first-to-file purposes. We do not address\nthis argument because we find McGuire was the first-to-file relator\neven if we consider Aspect Three of Cunningham's complaint.\n\n\n - 9 -\n\f\"confirmed by another method.\" The complaint alleges that\n\nMillennium's point-of-care model led to \"significantly more\n\ntesting,\" including \"confirmatory tests.\"\n\n Cunningham alleged generally that this scheme\n\n\"increas[ed] the revenues of the [physician] defendants at the\n\nexpense of the government and private health insurance programs\"\n\nand \"significantly increase[d] Millennium's revenues and market\n\nshare.\" Cunningham's amended complaint never mentions the terms\n\n\"custom profiles\" or \"standing orders\" or describes any fraudulent\n\nschemes by Millennium associated with either.\n\n Cunningham filed three disclosures of material evidence\n\nto the government in December 2009, September 2010, and February\n\n2012, respectively.\n\n 2. McGuire's Original Complaint\n\n Mark McGuire, appellant here, filed his original qui tam\n\ncomplaint on January 26, 2012. It focused not on point-of-care\n\ntesting, the first stage of urinary drug testing, as Cunningham's\n\ncomplaint had done, but on confirmatory (or quantitative) testing,\n\na later stage. McGuire alleged that after a point-of-care test\n\ndiscloses an unexpected drug (or shows the lack of an expected\n\ndrug), a physician can order confirmatory tests. These tests,\n\nwhich require sophisticated equipment and so can be expensive,\n\ndetermine how much of the substance is present (or not).\n\n\n\n\n - 10 -\n\f McGuire alleged that Millennium engaged in a scheme that\n\nresulted in unnecessary confirmatory tests being performed and\n\nbilled to the government after the point-of-care tests. Millennium\n\npersuaded physicians to execute \"custom profiles,\" which are\n\nstanding orders for a battery of confirmatory tests on every urine\n\nsample, regardless of whether the point-of-care testing showed a\n\nneed. McGuire alleged that \"even if [a point-of-care test] comes\n\nback completely negative, . . . based on the customized profile\n\nMillennium has gotten the physician's office to sign, Millennium\n\nruns 10 confirmatory tests.\" Millennium profited because \"[t]hese\n\n10 unnecessary tests are then billed to Medicare, Medicaid or other\n\nfederal plans.\" And physicians and hospitals who signed up for\n\n\"custom profiles\" profited because they could bill the government\n\nfor the unnecessary tests.\n\n This scheme was, according to McGuire's complaint, a\n\nmatter of corporate policy. McGuire alleged that Millennium\n\nsupervisors required their sales representatives to aggressively\n\nmarket standing orders to physicians -- the representatives would\n\nreturn time and time again until the physicians executed custom\n\nprofiles for at least ten confirmatory tests. Some physicians,\n\nwith Millennium's participation, included up to twenty-five tests\n\nin their profiles.\n\n McGuire also alleged that Millennium provided free\n\npoint-of-care cups (test kits) to physicians to induce them to\n\n\n - 11 -\n\fsend confirmation testing orders to Millennium. This tactic helped\n\nMillennium gain market share in a highly competitive and\n\npotentially quite lucrative business.\n\n 3. The Complaint and Settlement Agreement of the United\n States\n\n In December 2014, the government announced its intention\n\nto intervene in McGuire's action (as well as the actions of three\n\nother relators, none of whom were Cunningham). It filed its\n\ncomplaint in intervention in those actions on March 19, 2015. The\n\ncomplaint describes two fraudulent schemes: (1) Millennium's\n\nsubmission of claims for excessive and unnecessary urine drug\n\ntesting ordered by physicians through standing orders without an\n\nindividualized assessment of patient need; and (2) urine drug\n\ntesting referred by physicians who received free point-of-care\n\ntesting supplies, in violation of the Stark Act and the Anti-\n\nKickback Statute. Millennium used these schemes to \"knowingly\n\nsubmit[] many millions of dollars' worth of false claims\" to the\n\ngovernment.\n\n The United States complaint in intervention alleges that\n\n\"[a] core element of Millennium's business model was the use of\n\nphysician standing order forms.\" These standing orders led to\n\nunnecessary drug tests conducted \"regardless of each patient's\n\nindividualized need and condition.\" Millennium required\n\nphysicians to use these forms or be cut off from processing\n\n\n\n\n - 12 -\n\fspecimens, set and enforced testing thresholds for standing\n\norders, and promoted routine confirmatory testing of even negative\n\npoint-of-care test results. This standing order practice\n\ngenerated unnecessary testing, including confirmatory testing for\n\nrarely abused drugs, even when point-of-care test results showed\n\nno need for follow-up testing.\n\n The government's complaint also alleged that Millennium\n\nengaged in an illegal kickback scheme involving point-of-care\n\ncups. After the Center for Medicare and Medicaid Services (CMS)\n\nchanged the reimbursement structure for point-of-care cups\n\neffective April 2010, \"the [point-of-care] test cups were no longer\n\na source of significant reimbursement revenue for physicians.\" In\n\nresponse, Millennium \"dramatically\" expanded its \"Free Cup\n\nprogram.\" Under this program, Millennium distributed $5 million\n\nworth of point-of-care test cups for free to physicians in exchange\n\nfor \"referrals\" to Millennium. A physician \"refers\" a test by\n\nsending a sample for confirmatory testing. The government alleged\n\nthat this program violated the Stark Law and the Anti-Kickback\n\nStatute, which require point-of-care test cups to be sold at fair\n\nmarket value.\n\n On October 16, 2015, the government and Millennium\n\nreached a settlement under which Millennium agreed to pay $227\n\nmillion plus interest to resolve these claims. The settlement set\n\naside fifteen percent of the recovery as a relator's share, but\n\n\n - 13 -\n\fdid not resolve which relator was entitled to the award.7 The\n\nagreement provided that the district court \"shall retain\n\njurisdiction as to . . . [r]elators' claims for a share of the\n\nproceeds of the Settlement Amount.\" The district court dismissed\n\nonly the relators' claims against Millennium on March 24, 2016 and\n\nstated that the \"[r]elators' respective claims, between and among\n\nthemselves, for a portion of the agreed-upon 'relator share' of\n\nthe Settlement Amount . . . are not dismissed and will remain\n\npending.\"\n\nC. Post-Settlement Procedural History\n\n On October 23, 2015, McGuire filed a crossclaim for\n\ndeclaratory relief, asserting that he was the first to file a\n\ncomplaint that alleged the essential facts underlying the\n\ngovernment's complaint in intervention and settlement agreement.\n\nHe argued that he was entitled to the entire fifteen-percent\n\nrelator's share because he was the first-to-file relator.8 On\n\nDecember 7, 2015, Cunningham moved to dismiss McGuire's\n\ncrossclaim, arguing that he, not McGuire, was the first to file.\n\n\n 7 The settlement also preserved the relators' rights to\nseek reasonable costs and attorney's fees and expenses under 31\nU.S.C. § 3730(d)(2) and preserved some relators' employment-\nretaliation claims.\n 8 McGuire brought this crossclaim against Cunningham and\nseveral other relators but not against Wendy Johnson, Allstate\nInsurance Co., and Lawrence Spitz -- McGuire reports that he\n\"reached an agreement\" with this last group. The cross-defendants\nother than Cunningham have conceded that they filed behind McGuire.\n\n\n - 14 -\n\f The government took no position on this issue. It did,\n\nhowever, urge the district court to confine its first-to-file\n\nanalysis to \"the text of the complaints themselves, and not on any\n\nsubsequent investigation by the United States of such complaints\n\nor any related communications.\"\n\n On August 19, 2016, the district issued its order\n\ndismissing McGuire's crossclaim. Cunningham, 202 F. Supp. 3d at\n\n209. The district court held, relying on this circuit's precedent,\n\nthat the first-to-file rule was jurisdictional and that\n\nCunningham's motion to dismiss was a factual challenge to the\n\ncourt's jurisdiction. Id. at 205-06. The district court looked\n\nbeyond the complaints to extrinsic evidence and concluded that the\n\nfirst-to-file rule applied and barred McGuire's crossclaim. Id.\n\nat 206. The district court dismissed the crossclaim for lack of\n\nsubject-matter jurisdiction. Id. at 209. The order entered on\n\nthe docket three days later, on August 22, 2016.9\n\n McGuire moved for reconsideration of the order\n\ndismissing his crossclaim. The district court denied that motion.\n\nThis appeal followed.\n\n\n\n\n 9 There was no \"separate document,\" Fed. R. Civ. P.\n58(c)(2)(A), accompanying that order, so judgment entered 150 days\nlater, on January 19, 2017. McGuire had 30 days from then to file\nhis notice of appeal. McGuire's January 20, 2017 filing was\ntimely. Cunningham's arguments to the contrary are meritless.\n\n\n - 15 -\n\f II.\n\n A federal appellate court normally must \"satisfy itself\n\nboth of its own subject-matter jurisdiction and of the subject-\n\nmatter jurisdiction of the trial court before proceeding further.\"\n\nRoyal Siam Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007)\n\n(citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541\n\n(1986); Irving v. United States, 162 F.3d 154, 160 (1st Cir. 1998)\n\n(en banc)). We consider whether the first-to-file rule is\n\njurisdictional under the Supreme Court's most recent caselaw. On\n\nde novo review, and in light of that precedent, we hold that the\n\nfirst-to-file rule, 31 U.S.C. § 3730(b)(5), is nonjurisdictional\n\nand that we have jurisdiction over McGuire's crossclaim.10\n\n \"Characterizing a rule as jurisdictional renders it\n\nunique in our adversarial system.\" Sebelius v. Auburn Reg'l Med.\n\nCtr., 568 U.S. 145, 153 (2013). A jurisdictional objection may be\n\nraised at any time, even after trial. And a trial court without\n\njurisdiction lacks \"all authority to hear a case.\"11 United States\n\nv. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015).\n\n\n 10 McGuire argues that the district court erred in holding\nthat his crossclaim for declaratory judgment under paragraph\n3730(d)(1) is subject to the first-to-file rule. Cunningham, 202\nF. Supp. 3d at 203. We need not reach this argument because even\nif the first-to-file rule does not apply to McGuire's crossclaim,\nit applies to his underlying action against Millennium. And\nbecause that action eventually gave rise to McGuire's crossclaim,\nwe must assure ourselves of the district court's jurisdiction.\n 11 So even in a case like this one, in which seven years\nhave passed since McGuire first filed his complaint, a\n\n\n - 16 -\n\f The Supreme Court has attempted to \"ward off profligate\n\nuse of the term 'jurisdiction.'\" Auburn Reg'l Med. Ctr., 568 U.S.\n\nat 153. As such, it has held that we must apply a \"readily\n\nadministrable bright line\" rule and see if Congress has \"clearly\n\nstate[d]\" that the provision under review is jurisdictional.\n\nArbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).\n\n In considering this issue, we do not write on a clean\n\nslate. As the district court quite properly noted, this court has\n\nseveral times characterized the first-to-file rule as\n\njurisdictional. See United States ex rel. Wilson v. Bristol-Myers\n\nSquibb, Inc., 750 F.3d 111, 117 (1st Cir. 2014); United States ex\n\nrel. Heineman-Guta v. Guidant Corp., 718 F.3d 28, 34 (1st Cir.\n\n2013); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P.,\n\n579 F.3d 13, 16, 33 (1st Cir. 2009).\n\n While we are \"ordinarily 'constrained by prior panel\n\ndecisions directly (or even closely) on point,'\" we are not so\n\nbound when \"non-controlling authority that postdates the decision\n\n. . . offer[s] 'a compelling reason for believing that the former\n\npanel, in light of new developments, would change its collective\n\nmind.\" Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 96\n\n(1st Cir. 2012) (quoting United States v. Guzmán, 419 F.3d 27, 31\n\n\njurisdictional objection may result in dismissal. And that could\nmean \"many months of work on the part of the attorneys and the\ncourt may be wasted.\" Henderson ex rel. Henderson v. Shinseki,\n562 U.S. 428, 435 (2011).\n\n\n - 17 -\n\f(1st Cir. 2005)). There are several compelling reasons for such\n\na belief here.\n\n First, new developments cast serious doubt on our prior\n\ncharacterization of the first-to-file rule as jurisdictional. In\n\n2015, the Supreme Court decided Kellogg Brown & Root Services,\n\nInc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015), a\n\nqui tam case. Carter \"addressed the operation of the first-to-\n\nfile bar on decidedly nonjurisdictional terms, raising the issue\n\nafter it decided a nonjurisdictional statute of limitations\n\nissue.\" United States ex rel. Heath v. AT & T, Inc., 791 F.3d\n\n112, 121 n.4 (D.C. Cir. 2015). The clear implication is that the\n\nCourt did not consider the first-to-file rule to be jurisdictional.\n\nInterpreting Carter, the D.C. Circuit and the Second Circuit have\n\nboth held that the first-to-file rule is nonjurisdictional.12 See\n\nUnited States ex rel. Hayes v. Allstate Ins. Co., 853 F.3d 80, 85\n\n(2d Cir. 2017); Heath, 791 F.3d at 120-21.\n\n This court has twice declined to reach the issue of\n\nwhether the first-to-file rule is jurisdictional when it was not\n\nnecessary to resolution of the appeal, while recognizing that\n\nCarter affects the analysis. See United States ex rel. Kelly v.\n\nNovartis Pharm. Corp., 827 F.3d 5, 12 n.9 (1st Cir. 2016) (\"We\n\n\n 12 The Fourth Circuit has, after Carter, based on circuit\nprecedent, maintained that the first-to-file rule is\njurisdictional. See United States ex rel. Carter v. Halliburton\nCo., 866 F.3d 199, 203 n.1 (4th Cir. 2017).\n\n\n - 18 -\n\fassume, but need not decide, that the first-to-file bar remains\n\njurisdictional. This position is not without doubt.\"); United\n\nStates ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 6 n.2 (1st\n\nCir. 2015) (\"[W]e have no need to consider the relator's back-up\n\nargument that the first-to-file bar is not jurisdictional in light\n\nof Carter.\").\n\n Second, this circuit's prior cases labeling the first-\n\nto-file rule as jurisdictional, all of which predate Carter,\n\ndevoted no substantive analysis to this issue. Duxbury, the oldest\n\ncase, listed the first-to-file rule among the FCA's\n\n\"jurisdictional bars\" only in passing as dicta. 579 F.3d at 16.\n\nBut it did not ask, and no later First Circuit decision has asked,\n\nif Congress clearly stated that the first-to-file rule was\n\njurisdictional. Because these rulings failed to apply the Arbaugh\n\nclear-statement test, they should be \"accorded 'no precedential\n\neffect' on the question whether the federal court had authority to\n\nadjudicate the claim in suit.\" Arbaugh, 546 U.S. at 511 (quoting\n\nSteel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91 (1998)).\n\n And third, applying the bright line rule leads to only\n\none conclusion: the first-to-file rule is nonjurisdictional.\n\nNeither statutory text nor context nor legislative history\n\nsuggests otherwise. See Kwai Fun Wong, 135 S. Ct. at 1632-33\n\n(looking to text, context, and legislative history to determine\n\nwhether a statutory provision was jurisdictional).\n\n\n - 19 -\n\f As always in matters of statutory interpretation, we\n\nstart with the text. United States v. Musso, 914 F.3d 26, 30 (1st\n\nCir. 2019). Paragraph 3730(b)(5) provides that \"no person other\n\nthan the Government may intervene or bring a related action based\n\non the facts underlying the pending action.\" 31 U.S.C.\n\n§ 3730(b)(5). As the D.C. Circuit recognized, this \"language 'does\n\nnot speak in jurisdictional terms or refer in any way to the\n\njurisdiction of the district courts.'\" Heath, 791 F.3d at 120\n\n(quoting Arbaugh, 546 U.S. at 515).\n\n We next look to context. Paragraph 3730(b)(5) does not\n\nspeak in jurisdictional terms; nearby provisions, by contrast,\n\nexplicitly do so. Cf. Musso, 914 F.3d at 31 (drawing a negative\n\ninference from word choices made in neighboring statutory text).\n\nFor instance, paragraph 3730(e)(1) provides, \"No court shall have\n\njurisdiction over an action brought by a former or present member\n\nof the armed forces . . . against a member of the armed forces\n\narising out of such person's service in the armed forces.\" 31\n\nU.S.C. § 3730(e)(1). And paragraph 3730(e)(2) states, \"No court\n\nshall have jurisdiction over an action brought . . . against a\n\nMember of Congress, a member of the judiciary, or a senior\n\nexecutive branch official if the action is based on evidence or\n\ninformation known to the Government when the action was brought.\"\n\nId. § 3730(e)(2). So, as the D.C. Circuit recognized, \"[w]hen\n\nCongress wanted limitations on False Claims Act suits to operate\n\n\n - 20 -\n\fwith jurisdictional force, it said so explicitly.\" Heath, 791\n\nF.3d at 120.\n\n And finally, as a check to confirm the accuracy of our\n\ntextual analysis, we turn to legislative history. See Kwai Fun\n\nWong, 135 S. Ct. at 1633 (\"[E]ven assuming legislative history\n\nalone could provide a clear statement (which we doubt), none does\n\nso here.\"). Congress added the first-to-file rule when it amended\n\nthe FCA in 1986. The Senate Report states that the purpose of the\n\nfirst-to-file rule was to clarify that \"only the Government may\n\nintervene in a qui tam action\" and that \"private enforcement under\n\nthe civil False Claims Act is not meant to produce class actions\n\nor multiple separate suits based on identical facts and\n\ncircumstances.\" S. Rep. No. 99-345, at 25. The first-to-file\n\nrule advances this goal even when the provision is not\n\njurisdictional.\n\n Finding Congress had made no clear statement that the\n\nrule was jurisdictional, the D.C. Circuit held that \"the first-\n\nto-file rule bears only on whether a qui tam plaintiff has properly\n\nstated a claim.\" Heath, 791 F.3d at 121. The Second Circuit,\n\nrelying heavily on Heath, reached the same conclusion. Hayes, 853\n\nF.3d at 85-86. Given Carter, Heath, Hayes, and the Supreme Court's\n\nclear statement rule, there is a compelling reason to believe that\n\nprior panels would no longer view the first-to-file rule as\n\n\n\n\n - 21 -\n\fjurisdictional. For the same reasons, we now hold that the first-\n\nto-file rule is not jurisdictional.\n\n Because the first-to-file rule is not jurisdictional,\n\nthe district court had subject-matter jurisdiction over McGuire's\n\nclaim against Millennium. The district court also had subject-\n\nmatter jurisdiction over McGuire's crossclaim under 28 U.S.C.\n\n§§ 1331 and 2201. And we have jurisdiction under 28 U.S.C. § 1291.\n\n III.\n\n The remaining question is whether, under 31 U.S.C.\n\n§ 3730(d)(1), McGuire is entitled to the relator's share of the\n\ngovernment's settlement with Millennium.13 In assessing this\n\nquestion, we confine our review to the pleadings and to \"facts\n\nsusceptible to judicial notice.\"14 Haley, 657 F.3d at 46.\n\n As we demonstrate below, the crucial component of this\n\nquestion, as framed in this case, is whether McGuire was the first-\n\nto-file relator. Rather than remand, we address the first-to-file\n\n\n\n 13 The district court purported to deny Cunningham's\n12(b)(6) motion, but only after granting his 12(b)(1) motion. We\nhave noted that \"if the court lacks subject matter jurisdiction,\nassessment of the merits becomes a matter of purely academic\ninterest.\" Deniz v. Mun. of Guaynabo, 285 F.3d 142, 150 (1st Cir.\n2002). Deciding a Rule 12(b)(6) motion after finding no subject-\nmatter jurisdiction is \"gratuitous.\" Id. at 149.\n 14 The district court analyzed Cunningham's motion to\ndismiss as a factual challenge under Rule 12(b)(1) and so engaged\nits \"broad authority\" to look outside the pleadings \"to determine\nits own jurisdiction.\" Valentin v. Hosp. Bella Vista, 254 F.3d\n358, 363 (1st Cir. 2001).\n\n\n - 22 -\n\fissue as a matter of law because it has been fully briefed, because\n\nneither party suggests that the issue requires remand, and because\n\nthe basic facts are uncontested. See G. & C. Merriam Co. v.\n\nWebster Dictionary Co., 639 F.2d 29, 40 (1st Cir. 1980); see also\n\nLevy v. Lexington Cty., S.C., 589 F.3d 708, 716 (4th Cir. 2009);\n\nLNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d 454, 464\n\n(2d Cir. 1999).\n\n Subsection 3730(d), entitled \"Award to qui tam\n\nplaintiff,\" provides in relevant part:\n\n If the Government proceeds with an action\n brought by a person under subsection (b), such\n person shall, subject to the second sentence\n of this paragraph, receive at least 15 percent\n but not more than 25 percent of the proceeds\n of the action or settlement of the claim,\n depending upon the extent to which the person\n substantially contributed to the prosecution\n of the action.\n\n31 U.S.C. § 3730(d)(1). We look to whether the government's\n\nrecovery from Millennium constitutes the \"proceeds of the . . .\n\nsettlement of the claim\" McGuire brought. See Rille v.\n\nPricewaterhouseCoopers LLP, 803 F.3d 368, 373 (8th Cir. 2015) (en\n\nbanc) (\"[A] relator seeking recovery must establish that 'there\n\nexists [an] overlap between Relator's allegations and the conduct\n\ndiscussed in the settlement agreement.'\" (quoting United States\n\nex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 651 (6th\n\nCir. 2003))).\n\n\n\n\n - 23 -\n\f To be entitled to the relator's share under paragraph\n\n3730(d)(1), a relator must be a person who \"br[ings]\" \"an action\n\nunder . . . subsection [3730(b)].\" 31 U.S.C. § 3730(d)(1); Rille,\n\n803 F.3d at 372 (\"The relators' right to recovery is limited to a\n\nshare of the settlement of the claim that they brought.\"). The\n\nfirst-to-file rule bars any \"person other than the Government\"\n\nfrom \"bring[ing] a related action based on the facts underlying\n\nthe pending action.\" 31 U.S.C. § 3730(b)(5). So only the first-\n\nto-file relator can claim the relator's share of the settlement\n\nproceedings for each claim.\n\n Nearly all courts share this conclusion. See United\n\nStates ex rel. Shea v. Cellco P'ship, 863 F.3d 923, 927 (D.C. Cir.\n\n2017) (\"The first-to-file bar thereby ensures only one relator\n\nwill share in the government's recovery . . . .\"); United States\n\nex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149\n\nF.3d 227, 231 (3d Cir. 1998) (\"[N]o qui tam plaintiff may . . .\n\nshare in a government settlement if his or her allegations repeat\n\nclaims in a previously filed action.\"); see also United States ex\n\nrel. Merena v. SmithKline Beecham Corp., 205 F.3d 97, 103-06 (3d\n\nCir. 2000) (Alito, J.) (concluding \"that a relator whose claim is\n\nsubject to dismissal under [the public-disclosure rule in 31 U.S.C.\n\n§] 3730(e)(4) may not receive any share of the proceeds\n\n\n\n\n - 24 -\n\fattributable to that claim,\" id. at 106); Fed. Recovery Servs.,\n\nInc. v. United States, 72 F.3d 447, 450 (5th Cir. 1995).15\n\n This conclusion also aligns with the policies underlying\n\nthe first-to-file rule. The rule is \"part of the larger balancing\n\nact of the FCA's qui tam provision, which 'attempts to reconcile\n\ntwo conflicting goals, specifically, preventing opportunistic\n\nsuits, on the one hand, while encouraging citizens to act as\n\nwhistleblowers, on the other.'\" Wilson, 750 F.3d at 117 (quoting\n\nLaCorte, 149 F.3d at 233). \"The first-to-file bar operates on the\n\nrecognition that, because relators can bring suit without having\n\nsuffered a personal injury, countless plaintiffs in theory could\n\nfile a qui tam action based on the same fraud and then share in\n\nthe proceeds.\" Shea, 863 F.3d at 927. Allowing a follow-on filer\n\nto siphon off the first-filed suit's proceeds \"weaken[s] the\n\nincentive to dig out the facts and launch the initial action.\"\n\nUnited States ex rel. Chovanec v. Apria Healthcare Grp. Inc., 606\n\nF.3d 361, 364 (7th Cir. 2010).\n\n To resolve the first-to-file issue here, we ask whether\n\nCunningham's amended complaint \"contained 'all the essential\n\n\n\n\n 15 See also United States ex rel. Dhillon v. Endo Pharm.,\n617 F. App'x 208 (3d Cir. 2015) (unpublished) (summarily affirming\nthe district court's finding that only the first-to-file relator\nwas entitled to the relator's share of a settlement). But see\nUnited States ex rel. Doghramji v. Cmty. Health Sys., Inc., 666 F.\nApp'x 410, 418 (6th Cir. 2016) (rejecting this conclusion).\n\n\n - 25 -\n\ffacts'\" of the fraud McGuire alleged.16 United States ex rel. Ven-\n\nA-Care of the Fla. Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d\n\n932, 938 (1st Cir. 2014) (quoting Heineman-Guta, 718 F.3d at 34).\n\nWhile this \"essential facts\" standard does not require \"identity\n\nbetween the two complaints to trigger the first-to-file rule,\"\n\nid., the rule still may bar a different \"claim even if that claim\n\nincorporates somewhat different details,\" id. (quoting Wilson, 750\n\nF.3d at 118). The essential facts test \"presents a question of\n\nlaw about the statutorily required threshold for notifying the\n\ngovernment of the fraud alleged in the later-filed suit.\" Id.\n\nOur review is de novo.17 Id.\n\n We apply the essential facts test by comparing\n\nCunningham's amended complaint and McGuire's original complaint.\n\nSee Heath, 791 F.3d at 121 (\"Similarity is assessed by comparing\n\n\n\n 16 Other circuits, such as the D.C. Circuit, preclude\nrecovery from not-first-to-file relators when the first-filed\ncomplaint alleges the \"material elements of fraud\" at issue and\n\"equip[s] the government to investigate\" that fraud. United States\nex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir. 2011).\nFor purposes of this case, we see no difference between this\nstandard and the essential facts test.\n 17 Cunningham argues that the settlement independently\nreserved this issue for the district court to resolve as a matter\nof fact, and that we must accept the district court's findings.\nThe premise is wrong -- the settlement says nothing of the sort.\nIt states only that the district court \"retain[ed] jurisdiction\"\nover this issue, and that the relators \"reserve[d] their rights\nagainst Millennium to seek attorneys' fees, costs and expenses\"\nunder applicable provisions. It does not displace normal first-\nto-file law.\n\n\n - 26 -\n\fthe complaints side-by-side . . . .\"); Ven-A-Care, 772 F.3d at 938\n\n(\"[W]e compare the Ven-A-Care complaint to the Sun and Hamilton\n\ncomplaint.\"); In re Nat. Gas Royalties Qui Tam Litig. (CO2\n\nAppeals), 566 F.3d 956, 964 (10th Cir. 2009) (\"The first-to-file\n\nbar is designed to be quickly and easily determinable, simply\n\nrequiring a side-by-side comparison of the complaints.\"). First-\n\nto-file analysis is limited to the four corners of the relevant\n\ncomplaints. See Duxbury, 579 F.3d at 33-34 (refusing to consider\n\nallegations in a later-filed Information because the relator \"had\n\nhis opportunity to [include those allegations] when he filed [his]\n\nOriginal Complaint\"). We conclude, based on those two complaints,\n\nthat Cunningham and McGuire do not allege similar frauds, but\n\nallege different frauds with different mechanisms.\n\n We proceed claim-by-claim. Merena, 205 F.3d at 102\n\n(\"[T]he court must conduct a claim-by-claim analysis in order to\n\ndetermine if section 3730(b)(5) applies.\"). Two claims of fraud\n\nare relevant here: (1) Millennium's custom profile fraud, and\n\n(2) Millennium's point-of-care cup kickback scheme. Cunningham's\n\ncomplaint lacks all the essential elements of both claims.\n\n Cunningham argues that he was the first to file a claim\n\nagainst Millennium for excessive and unnecessary drug testing.\n\nBut this is too general an argument. We must look to the actual\n\nmechanism (the \"essential facts\") of the fraud that Cunningham\n\nalleged. In his amended complaint, Cunningham alleged that\n\n\n - 27 -\n\fMillennium's Physician Billing Model, which involved physicians\n\nbilling the government for multiple tests for each point-of-care\n\ncup, led to \"significantly more testing.\" And he alleged that\n\nthis increased point-of-care testing led, in turn, to more\n\n\"confirmatory tests.\" But CMS revised its reimbursement rules to\n\ndefeat such fraud, so physicians can no longer bill for multiple\n\ntests from a single cup. And Cunningham's amended complaint never\n\nmentions \"standing orders\" or \"custom profiles,\" as McGuire's\n\ndoes.\n\n Cunningham's allegations do not cover the essential\n\nelements of the fraud that McGuire described in his original\n\ncomplaint. McGuire alleged that Millennium required physicians to\n\nexecute custom profiles. And McGuire alleged that these profiles\n\ndirected Millennium to automatically conduct a battery of\n\nconfirmatory tests regardless of individual patient need and\n\nregardless of what the point-of-care test showed. The fraud\n\nMcGuire alleged had a different mechanism (the custom profiles)\n\nand focused on a different stage of testing (the confirmatory\n\nstage) than the one Cunningham described. McGuire was the first\n\nrelator to file a claim including the essential elements of\n\nMillennium's custom profile fraud, which the government then\n\npursued.\n\n Cunningham also argues that he alleged the essential\n\nelements of Millennium's point-of-care cup kickback scheme, the\n\n\n - 28 -\n\fsecond scheme the government pursued. He says he \"alleged\n\nMillennium provided test kits at a nominal cost, and encouraged\n\ndoctors to bill for numerous tests rather than for just one multi-\n\npanel test.\" But Cunningham's amended complaint makes only one\n\nmention of cost: it says that the point-of-care cups \"can be\n\npurchased for less than $10.00.\" Cunningham did not allege that\n\nthis was less than fair market value. And he did not allege that\n\nMillennium provided the cups for free in exchange for physicians\n\nreferring confirmatory testing. McGuire, by contrast, alleged\n\nthat Millennium provided point-of-care cups, \"a valuable\n\ndiagnostic tool,\" to physicians for free to induce them to send\n\nconfirmation testing orders to Millennium.\n\n Again, Cunningham's allegations do not include the\n\nessential elements of the fraud McGuire alleged. Further, the\n\nfraud the government pursued was that alleged by McGuire.18 The\n\ngovernment alleged that Millennium distributed $5 million worth of\n\nfree point-of-care test cups in exchange for the doctors referring\n\nthe cups to Millennium for confirmatory testing. This was an\n\nillegal kickback because, \"absent an applicable statutory\n\n\n\n\n 18 McGuire attached the government's complaint in\nintervention to his crossclaim, so it is properly before us. In\nany event, the government's complaint would be subject to judicial\nnotice. See Zucker, 919 F.3d at 651 n.5 (citing E.I. Du Pont de\nNemours & Co., 791 F.2d at 7 (Breyer, J.)).\n\n\n - 29 -\n\fexception[, point-of-care] cups had to be sold at 'fair market\n\nvalue' to comply with the Stark Law and Anti-Kickback Statute.\"\n\n The district court erred when it found that\n\n\"Cunningham's materials provided the government with 'sufficient\n\nnotice to initiate an investigation into [Millennium's] allegedly\n\nfraudulent practices.'\" Cunningham, 202 F. Supp. 3d at 206\n\n(quoting Ven-A-Care, 772 F.3d at 938). Mere notice -- particularly\n\nof a different fraud than the government chose to pursue -- is not\n\nenough. As we made clear in Ven-A-Care, \"we must ask not merely\n\nwhether the first-filed complaint provides some evidence from\n\nwhich an astute government official could arguably have been put\n\non notice, but also whether the first complaint contained all the\n\nessential facts of the fraud it alleges.\" 772 F.3d at 938\n\n(emphasis added) (internal citation and quotation marks omitted).\n\n McGuire has established that he was the first to file a\n\nclaim alleging the essential facts of Millennium's custom profile\n\nfraud and point-of-care cup kickback scheme. He has also\n\nadequately pleaded that the government's recovery from Millennium\n\nconstitutes the \"proceeds of the . . . settlement of the claim[s]\"\n\nhe brought.19 31 U.S.C. § 3730(d)(1).\n\n\n 19There is no assertion by the government or anyone else\nthat McGuire did not plead the conduct that formed the basis of\nthe claims the government ultimately settled. We need not address\nthe issue decided by the Eighth Circuit in Rille. See 803 F.3d at\n374 (remanding for further factual development in a case in which\n\"[t]he government objected to [the relators'] recovery on the\n\n\n - 30 -\n\f IV.\n\n We reverse20 and remand for further proceedings\n\nconsistent with this opinion.\n\n\n\n\nground that the relators' complaint did not plead the conduct that\nformed the basis of the claims that the government ultimately\nsettled,\" id. at 371).\n 20 Our holding moots McGuire's appeal of the district\ncourt's denial of his motion to reconsider.\n\n\n - 31 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America; State of California; State of Colorado; State of Connecticut; State of Delaware; District of Columbia; State of Florida; State of Georgia; State of Hawaii; State of Illinois; State of Indiana; State of Iowa; State of Louisiana; State of Maryland; Commonwealth of Massachusetts; State of Michigan; State of Montana; State of Nevada; State of New Jersey; State of New Mexico; State of New York; State of North Carolina; State of Oklahoma; State of Rhode Island; State of Tennessee; State of Texas; Commonwealth of Virginia; And State of Wisconsin, Ex Rel. Mark McGuire, Wendy Johnson, and Ryan Uehling, Plaintiffs, v. MILLENIUM LABORATORIES, INC., Millenium Laboratories of California, Inc.; James Slattery ; Howard Appel, Defendants. Mark McGuire, Cross-Claimant, Appellant, Estate of Robert Cunningham; Ryan Uehling; Omni Healthcare Inc.; Amadeo Pesce; John Doe A/K/A Craig Deligdish, Cross-Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1106\\n\\n UNITED STATES OF AMERICA; STATE OF CALIFORNIA; STATE OF\\n COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF\\n COLUMBIA; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII;\\n STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OF\\n LOUISIANA; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS;\\n STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEVADA; STATE OF\\n NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF\\n NORTH CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE\\nOF TENNESSEE; STATE OF TEXAS; COMMONWEALTH OF VIRGINA; and STATE\\n OF WISCONSIN, ex rel. MARK MCGUIRE, WENDY JOHNSON, and\\n RYAN UEHLING,\\n\\n Plaintiffs,\\n\\n v.\\n\\n MILLENIUM LABORATORIES, INC., MILLENIUM LABORATORIES OF\\n CALIFORNIA, INC.; JAMES SLATTERY; HOWARD APPEL,\\n\\n Defendants.\\n\\n\\n MARK MCGUIRE,\\n\\n Cross-Claimant, Appellant,\\n\\nESTATE OF ROBERT CUNNINGHAM; RYAN UEHLING; OMNI HEALTHCARE INC.;\\n AMADEO PESCE; JOHN DOE a/k/a CRAIG DELIGDISH,\\n\\n Cross-Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Nathaniel M. Gorton, U.S. District Judge]\\n\\f Before\\n\\n Torruella, Lynch, and Thompson,\\n Circuit Judges.\\n\\n\\n Michael Tabb, with whom Thomas M. Greene, Ryan P. Morrison,\\nand Greene LLP were on brief, for appellant.\\n Michael B. Bogdanow, with whom Robert Foster and Meehan,\\nBoyle, Black & Bogdanow, P.C. were on brief, for appellees.\\n\\n\\n May 6, 2019\\n\\f LYNCH, Circuit Judge. The False Claims Act (FCA), 31\\n\\nU.S.C. § 3729 et seq., authorizes private persons, known as\\n\\nrelators, to \\\"bring a civil action . . . in the name of the\\n\\nGovernment\\\" against those who make fraudulent claims against the\\n\\nUnited States, id. § 3730(b)(1). When a relator brings such a qui\\n\\ntam suit, the government may intervene and proceed with the action,\\n\\nor it may decline to intervene and allow the relator to proceed.\\n\\nSee id. § 3730(b)(1)-(4), (c).\\n\\n The FCA encourages relators to bring qui tam suits by\\n\\nallowing them to share in any recovery obtained for the government.\\n\\nTo avoid diluting this potential payout, the FCA's first-to-file\\n\\nrule prohibits relators other than the first to file from\\n\\n\\\"bring[ing] a related action based on the facts underlying the\\n\\npending action.\\\" Id. § 3730(b)(5).\\n\\n This case arises out of the government's successful\\n\\nintervention in several qui tam suits against Millennium Health\\n\\n(formerly Millennium Laboratories). Millennium settled with the\\n\\ngovernment for $227 million, setting aside fifteen percent of that\\n\\nmoney as a relator's share. The question on appeal is who is the\\n\\nfirst-to-file relator and how that is determined.\\n\\n Mark McGuire brought a crossclaim for declaratory\\n\\njudgment that he is the first to file and is entitled, under 31\\n\\nU.S.C. § 3730(d)(1), to the fifteen-percent share. Robert\\n\\nCunningham, who had brought an earlier qui tam suit against\\n\\n\\n - 3 -\\n\\fMillennium, moved to dismiss the crossclaim, arguing that he, not\\n\\nMcGuire, was the first to file. Finding that the first-to-file\\n\\nrule was jurisdictional, and based on its review of extrinsic\\n\\nmaterials outside of the complaints, the district court agreed\\n\\nwith Cunningham. United States ex rel. Cunningham v. Millennium\\n\\nLabs., Inc., 202 F. Supp. 3d 198, 209 (D. Mass. 2016). The district\\n\\ncourt dismissed McGuire's crossclaim for lack of subject-matter\\n\\njurisdiction. Id.\\n\\n We hold, for the first time in this circuit, that the\\n\\nfirst-to-file rule is not jurisdictional, reversing earlier\\n\\ncircuit precedent, and we hold that we have jurisdiction over\\n\\nMcGuire's crossclaim. We then describe the appropriate method for\\n\\nthe first-to-file analysis and hold that McGuire was the first-\\n\\nto-file relator and that he has stated a claim that he is entitled\\n\\nto the relator's share of the settlement. We reverse and remand\\n\\nfor further proceedings consistent with this opinion.\\n\\n I.\\n\\nA. The False Claims Act\\n\\n President Abraham Lincoln signed the FCA into law in\\n\\n1863. It was originally intended \\\"to combat rampant fraud in Civil\\n\\nWar defense contracts.\\\" S. Rep. No. 99-345, at 8 (1986). Today,\\n\\nthe FCA is the federal government's \\\"primary litigative tool for\\n\\ncombatting fraud.\\\" Id. at 2.\\n\\n\\n\\n\\n - 4 -\\n\\f The FCA imposes liability on any person who \\\"knowingly\\n\\npresents . . . a false or fraudulent claim for payment or\\n\\napproval,\\\" 31 U.S.C. § 3729(a)(1)(A), \\\"to an officer, employee, or\\n\\nagent of the United States,\\\" id. § 3729(b)(2)(A)(i). A relator\\n\\nmay enforce the FCA by bringing a civil qui tam action \\\"in the\\n\\nname of the Government.\\\" Id. § 3730(b).\\n\\n To bring such an action, the relator must file a\\n\\ncomplaint under seal and must serve the United States with a copy\\n\\nof the complaint and a disclosure of all material evidence. Id.\\n\\n§ 3730(b)(2). After reviewing those materials, the United States\\n\\nmay \\\"proceed with the action, in which case the action shall be\\n\\nconducted by the Government.\\\" Id. § 3730(b)(4). Or, \\\"[i]f the\\n\\ngovernment does not exercise its right to intervene in the suit,\\n\\nthe relator may serve the complaint upon the defendant and proceed\\n\\nwith the action.\\\" United States ex rel. Karvelas v. Melrose-\\n\\nWakefield Hosp., 360 F.3d 220, 225 (1st Cir. 2004), abrogated on\\n\\nother grounds by Allison Engine Co. v. United States ex rel.\\n\\nSanders, 553 U.S. 662 (2008).\\n\\n The FCA entitles the relator to a portion of any\\n\\nresulting judgment or settlement. Before the 1986 amendments to\\n\\nthe FCA, the relator's share in a case in which the government had\\n\\nintervened was capped at \\\"10 percent of the proceeds of the action\\n\\nor settlement of the claim.\\\" S. Rep. No. 99-345, at 41. The FCA\\n\\nnow mandates a relator award in such a case of \\\"at least 15 percent\\n\\n\\n - 5 -\\n\\fbut not more than 25 percent of the proceeds of the action or\\n\\nsettlement of the claim, depending upon the extent to which the\\n\\nperson substantially contributed to the prosecution of the\\n\\naction.\\\"1 31 U.S.C. § 3730(d)(1).\\n\\n The 1986 amendments also added a significant restriction\\n\\non recoveries in qui tam suits that is relevant here: the \\\"first-\\n\\nto-file\\\" rule in paragraph 3730(b)(5). That paragraph provides,\\n\\n\\\"When a person brings an action under [31 U.S.C. § 3730(b)], no\\n\\nperson other than the Government may intervene or bring a related\\n\\naction based on the facts underlying the pending action.\\\" Id.\\n\\n§ 3730(b)(5). Legislative history shows that this rule was meant\\n\\nto \\\"clarify in the statute that private enforcement under the civil\\n\\nFalse Claims Act is not meant to produce class actions or multiple\\n\\nseparate suits based on identical facts and circumstances.\\\" S.\\n\\nRep. No. 99-345, at 25.\\n\\nB. The Complaints\\n\\n Because we hold that the first-to-file issue is to be\\n\\naddressed under Federal Rule of Civil Procedure 12(b)(6), not Rule\\n\\n12(b)(1), we confine our review to the pleadings and to facts\\n\\nsubject to judicial notice. Haley v. City of Bos., 657 F.3d 39,\\n\\n\\n\\n 1 When the government declines to intervene and the\\nrelator successfully prosecutes the action, the relator may\\nreceive up to 30 percent of the payout (with the remainder to the\\nUnited States). 31 U.S.C. § 3730(d)(2). That is not the situation\\nhere.\\n\\n\\n - 6 -\\n\\f46 (1st Cir. 2011). We limit our background discussion to facts\\n\\nalleged in Cunningham's amended complaint, McGuire's original\\n\\ncomplaint, and in the government's complaint in intervention and\\n\\nsettlement agreement.2\\n\\n 1. Cunningham's Amended Complaint\\n\\n In late 2009 and early 2010, relator Robert Cunningham3\\n\\nfiled qui tam actions against five competitors of Calloway\\n\\nLaboratories, his employer. One competitor he sued was Millennium.\\n\\n Cunningham filed his first amended complaint4 against\\n\\nMillennium on February 24, 2011. It detailed a mechanism of fraud\\n\\narising from Millennium's \\\"Physician Billing Model,\\\" the key\\n\\ncomponent of which was Millennium's \\\"multi-class qualitative drug\\n\\nscreen,\\\" which Cunningham's complaint labels a \\\"test kit.\\\" The\\n\\ntest kit was a urine specimen collection cup with chemical test\\n\\n\\n\\n 2 Cunningham's amended complaint and McGuire's original\\ncomplaint are subject to judicial notice. See Zucker v. Rodriguez,\\n919 F.3d 649, 651 n.5 (1st Cir. 2019) (citing E.I. Du Pont de\\nNemours & Co. v. Cullen, 791 F.2d 5, 7 (1st Cir. 1986) (Breyer,\\nJ.)). And the government's complaint in intervention and\\nsettlement agreement are also properly before us because McGuire\\nattached them as exhibits to his crossclaim.\\n 3 Cunningham died in December 2010. His estate has\\ncontinued to pursue his action. For simplicity, we refer to\\nCunningham and his estate as \\\"Cunningham.\\\"\\n 4 Cunningham's amended complaint states, \\\"This First\\nAmended Complaint does not add any facts to those contained in the\\nOriginal Complaint; rather, it removes some of the allegations\\nthat had been contained therein.\\\" The amended complaint's\\nallegations were the only allegations \\\"pending\\\" when McGuire filed\\nhis suit.\\n\\n\\n - 7 -\\n\\fstrips embedded in it. This kit, which \\\"c[ould] be purchased for\\n\\nless than\\\" ten dollars, \\\"use[d] a single specimen\\\" collected at\\n\\nthe point of care to detect \\\"multiple drug classes.\\\"\\n\\n We described the three aspects of Cunningham's\\n\\nallegations in United States ex rel. Estate of Cunningham v.\\n\\nMillennium Labs. of Calif., Inc., 713 F.3d 662, 665-66 (1st Cir.\\n\\n2013). Cunningham's complaint alleged that Millennium used its\\n\\ninexpensive point-of-care test kits to induce physicians into\\n\\nexcessive billing (Aspect One), excessive testing (Aspect Two),\\n\\nand excessive confirmatory testing (Aspect Three).5 In Cunningham,\\n\\n\\n 5 We describe the first two aspects more fully. Aspect\\nOne: Cunningham alleged that Millennium told physicians that this\\ntest kit could \\\"substantially increase his or her revenue.\\\"\\nBecause the kits performed several tests at once, Millennium told\\nthe physicians that they could \\\"bill both government and private\\nhealth insurance companies\\\" for several drugs tests per kit. Under\\nthen-current government billing codes, the physicians should have\\nonly billed for one test per test kit. Cunningham alleged that a\\ndocument distributed by Millennium \\\"suggest[ed] each physician can\\nbill at least 9 units per kit.\\\" And Cunningham alleged that\\nMillennium separately informed physicians that they should bill\\n\\\"as many units as there are panels in the test kit.\\\" Cunningham\\nalleged that, under this model, physicians could bill between\\n$16.67 and $80 per unit and so extract per-kit revenues of between\\n$173.18 to $432.\\n Aspect Two: Cunningham alleged that Millennium encouraged\\nphysicians to conduct excessive tests. Millennium informed\\nphysicians that, if they were to order twenty tests per day, they\\ncould earn up to $8,640 per day. The complaint stated that\\nMillennium thus \\\"encourage[d] the physician to order more testing\\nthan that physician would have prior to engaging in Millennium's\\n[point-of-care] model, and increase[d] Millennium's market share\\nby drawing other physicians to the practice with the hope and\\npromise of greater revenues.\\\" It further alleged that\\nparticipating physicians ordered \\\"significantly more testing for\\ntheir patients since entering the conspiracy than they did prior\\n\\n - 8 -\\n\\fwe held that Aspects One and Three were jurisdictionally barred by\\n\\nthe FCA's public disclosure provision, 31 U.S.C. § 3730(e)(4)(A),\\n\\nbecause they had been \\\"publicly disclosed\\\" in a California state\\n\\ndefamation suit brought by Millennium against Calloway. 713 F.3d\\n\\nat 671. We then vacated the district court's order dismissing\\n\\nAspect Two of Cunningham's claim and remanded that claim for\\n\\nfurther proceedings. Id. at 676. On remand, the district court\\n\\ndismissed Aspect Two of Cunningham's claim for lack of\\n\\nparticularity under Federal Rule of Civil Procedure 9(b) and for\\n\\nfailure to state a claim under Rule 12(b)(6). United States ex\\n\\nrel. Estate of Cunningham v. Millennium Labs. of Cal., No. 09-\\n\\n12209-RWZ, 2014 WL 309374, at *2 (D. Mass. Jan. 27, 2014). That\\n\\ndecision is currently on appeal.\\n\\n Only Aspect Three is potentially relevant to the first-\\n\\nto-file issue here.6 Cunningham alleged that if the initial\\n\\nqualitative test uncovered any of the tested drugs, that test\\n\\n\\\"w[ould] need to be followed up by a quantitative screen\\\" and then\\n\\n\\n\\n\\nto participating in the conspiracy with Millennium.\\\" The alleged\\nfraud consisted of Millennium's promotion of this billing model\\nand physician defendants' misrepresentation of the medical need\\nfor the tests performed.\\n 6 McGuire argues, based on Campbell v. Redding Medical\\nCenter, 421 F.3d 817 (9th Cir. 2005), that because we found Aspect\\nThree to be jurisdictionally barred, it does not count as a\\n\\\"pending\\\" claim for first-to-file purposes. We do not address\\nthis argument because we find McGuire was the first-to-file relator\\neven if we consider Aspect Three of Cunningham's complaint.\\n\\n\\n - 9 -\\n\\f\\\"confirmed by another method.\\\" The complaint alleges that\\n\\nMillennium's point-of-care model led to \\\"significantly more\\n\\ntesting,\\\" including \\\"confirmatory tests.\\\"\\n\\n Cunningham alleged generally that this scheme\\n\\n\\\"increas[ed] the revenues of the [physician] defendants at the\\n\\nexpense of the government and private health insurance programs\\\"\\n\\nand \\\"significantly increase[d] Millennium's revenues and market\\n\\nshare.\\\" Cunningham's amended complaint never mentions the terms\\n\\n\\\"custom profiles\\\" or \\\"standing orders\\\" or describes any fraudulent\\n\\nschemes by Millennium associated with either.\\n\\n Cunningham filed three disclosures of material evidence\\n\\nto the government in December 2009, September 2010, and February\\n\\n2012, respectively.\\n\\n 2. McGuire's Original Complaint\\n\\n Mark McGuire, appellant here, filed his original qui tam\\n\\ncomplaint on January 26, 2012. It focused not on point-of-care\\n\\ntesting, the first stage of urinary drug testing, as Cunningham's\\n\\ncomplaint had done, but on confirmatory (or quantitative) testing,\\n\\na later stage. McGuire alleged that after a point-of-care test\\n\\ndiscloses an unexpected drug (or shows the lack of an expected\\n\\ndrug), a physician can order confirmatory tests. These tests,\\n\\nwhich require sophisticated equipment and so can be expensive,\\n\\ndetermine how much of the substance is present (or not).\\n\\n\\n\\n\\n - 10 -\\n\\f McGuire alleged that Millennium engaged in a scheme that\\n\\nresulted in unnecessary confirmatory tests being performed and\\n\\nbilled to the government after the point-of-care tests. Millennium\\n\\npersuaded physicians to execute \\\"custom profiles,\\\" which are\\n\\nstanding orders for a battery of confirmatory tests on every urine\\n\\nsample, regardless of whether the point-of-care testing showed a\\n\\nneed. McGuire alleged that \\\"even if [a point-of-care test] comes\\n\\nback completely negative, . . . based on the customized profile\\n\\nMillennium has gotten the physician's office to sign, Millennium\\n\\nruns 10 confirmatory tests.\\\" Millennium profited because \\\"[t]hese\\n\\n10 unnecessary tests are then billed to Medicare, Medicaid or other\\n\\nfederal plans.\\\" And physicians and hospitals who signed up for\\n\\n\\\"custom profiles\\\" profited because they could bill the government\\n\\nfor the unnecessary tests.\\n\\n This scheme was, according to McGuire's complaint, a\\n\\nmatter of corporate policy. McGuire alleged that Millennium\\n\\nsupervisors required their sales representatives to aggressively\\n\\nmarket standing orders to physicians -- the representatives would\\n\\nreturn time and time again until the physicians executed custom\\n\\nprofiles for at least ten confirmatory tests. Some physicians,\\n\\nwith Millennium's participation, included up to twenty-five tests\\n\\nin their profiles.\\n\\n McGuire also alleged that Millennium provided free\\n\\npoint-of-care cups (test kits) to physicians to induce them to\\n\\n\\n - 11 -\\n\\fsend confirmation testing orders to Millennium. This tactic helped\\n\\nMillennium gain market share in a highly competitive and\\n\\npotentially quite lucrative business.\\n\\n 3. The Complaint and Settlement Agreement of the United\\n States\\n\\n In December 2014, the government announced its intention\\n\\nto intervene in McGuire's action (as well as the actions of three\\n\\nother relators, none of whom were Cunningham). It filed its\\n\\ncomplaint in intervention in those actions on March 19, 2015. The\\n\\ncomplaint describes two fraudulent schemes: (1) Millennium's\\n\\nsubmission of claims for excessive and unnecessary urine drug\\n\\ntesting ordered by physicians through standing orders without an\\n\\nindividualized assessment of patient need; and (2) urine drug\\n\\ntesting referred by physicians who received free point-of-care\\n\\ntesting supplies, in violation of the Stark Act and the Anti-\\n\\nKickback Statute. Millennium used these schemes to \\\"knowingly\\n\\nsubmit[] many millions of dollars' worth of false claims\\\" to the\\n\\ngovernment.\\n\\n The United States complaint in intervention alleges that\\n\\n\\\"[a] core element of Millennium's business model was the use of\\n\\nphysician standing order forms.\\\" These standing orders led to\\n\\nunnecessary drug tests conducted \\\"regardless of each patient's\\n\\nindividualized need and condition.\\\" Millennium required\\n\\nphysicians to use these forms or be cut off from processing\\n\\n\\n\\n\\n - 12 -\\n\\fspecimens, set and enforced testing thresholds for standing\\n\\norders, and promoted routine confirmatory testing of even negative\\n\\npoint-of-care test results. This standing order practice\\n\\ngenerated unnecessary testing, including confirmatory testing for\\n\\nrarely abused drugs, even when point-of-care test results showed\\n\\nno need for follow-up testing.\\n\\n The government's complaint also alleged that Millennium\\n\\nengaged in an illegal kickback scheme involving point-of-care\\n\\ncups. After the Center for Medicare and Medicaid Services (CMS)\\n\\nchanged the reimbursement structure for point-of-care cups\\n\\neffective April 2010, \\\"the [point-of-care] test cups were no longer\\n\\na source of significant reimbursement revenue for physicians.\\\" In\\n\\nresponse, Millennium \\\"dramatically\\\" expanded its \\\"Free Cup\\n\\nprogram.\\\" Under this program, Millennium distributed $5 million\\n\\nworth of point-of-care test cups for free to physicians in exchange\\n\\nfor \\\"referrals\\\" to Millennium. A physician \\\"refers\\\" a test by\\n\\nsending a sample for confirmatory testing. The government alleged\\n\\nthat this program violated the Stark Law and the Anti-Kickback\\n\\nStatute, which require point-of-care test cups to be sold at fair\\n\\nmarket value.\\n\\n On October 16, 2015, the government and Millennium\\n\\nreached a settlement under which Millennium agreed to pay $227\\n\\nmillion plus interest to resolve these claims. The settlement set\\n\\naside fifteen percent of the recovery as a relator's share, but\\n\\n\\n - 13 -\\n\\fdid not resolve which relator was entitled to the award.7 The\\n\\nagreement provided that the district court \\\"shall retain\\n\\njurisdiction as to . . . [r]elators' claims for a share of the\\n\\nproceeds of the Settlement Amount.\\\" The district court dismissed\\n\\nonly the relators' claims against Millennium on March 24, 2016 and\\n\\nstated that the \\\"[r]elators' respective claims, between and among\\n\\nthemselves, for a portion of the agreed-upon 'relator share' of\\n\\nthe Settlement Amount . . . are not dismissed and will remain\\n\\npending.\\\"\\n\\nC. Post-Settlement Procedural History\\n\\n On October 23, 2015, McGuire filed a crossclaim for\\n\\ndeclaratory relief, asserting that he was the first to file a\\n\\ncomplaint that alleged the essential facts underlying the\\n\\ngovernment's complaint in intervention and settlement agreement.\\n\\nHe argued that he was entitled to the entire fifteen-percent\\n\\nrelator's share because he was the first-to-file relator.8 On\\n\\nDecember 7, 2015, Cunningham moved to dismiss McGuire's\\n\\ncrossclaim, arguing that he, not McGuire, was the first to file.\\n\\n\\n 7 The settlement also preserved the relators' rights to\\nseek reasonable costs and attorney's fees and expenses under 31\\nU.S.C. § 3730(d)(2) and preserved some relators' employment-\\nretaliation claims.\\n 8 McGuire brought this crossclaim against Cunningham and\\nseveral other relators but not against Wendy Johnson, Allstate\\nInsurance Co., and Lawrence Spitz -- McGuire reports that he\\n\\\"reached an agreement\\\" with this last group. The cross-defendants\\nother than Cunningham have conceded that they filed behind McGuire.\\n\\n\\n - 14 -\\n\\f The government took no position on this issue. It did,\\n\\nhowever, urge the district court to confine its first-to-file\\n\\nanalysis to \\\"the text of the complaints themselves, and not on any\\n\\nsubsequent investigation by the United States of such complaints\\n\\nor any related communications.\\\"\\n\\n On August 19, 2016, the district issued its order\\n\\ndismissing McGuire's crossclaim. Cunningham, 202 F. Supp. 3d at\\n\\n209. The district court held, relying on this circuit's precedent,\\n\\nthat the first-to-file rule was jurisdictional and that\\n\\nCunningham's motion to dismiss was a factual challenge to the\\n\\ncourt's jurisdiction. Id. at 205-06. The district court looked\\n\\nbeyond the complaints to extrinsic evidence and concluded that the\\n\\nfirst-to-file rule applied and barred McGuire's crossclaim. Id.\\n\\nat 206. The district court dismissed the crossclaim for lack of\\n\\nsubject-matter jurisdiction. Id. at 209. The order entered on\\n\\nthe docket three days later, on August 22, 2016.9\\n\\n McGuire moved for reconsideration of the order\\n\\ndismissing his crossclaim. The district court denied that motion.\\n\\nThis appeal followed.\\n\\n\\n\\n\\n 9 There was no \\\"separate document,\\\" Fed. R. Civ. P.\\n58(c)(2)(A), accompanying that order, so judgment entered 150 days\\nlater, on January 19, 2017. McGuire had 30 days from then to file\\nhis notice of appeal. McGuire's January 20, 2017 filing was\\ntimely. Cunningham's arguments to the contrary are meritless.\\n\\n\\n - 15 -\\n\\f II.\\n\\n A federal appellate court normally must \\\"satisfy itself\\n\\nboth of its own subject-matter jurisdiction and of the subject-\\n\\nmatter jurisdiction of the trial court before proceeding further.\\\"\\n\\nRoyal Siam Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007)\\n\\n(citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541\\n\\n(1986); Irving v. United States, 162 F.3d 154, 160 (1st Cir. 1998)\\n\\n(en banc)). We consider whether the first-to-file rule is\\n\\njurisdictional under the Supreme Court's most recent caselaw. On\\n\\nde novo review, and in light of that precedent, we hold that the\\n\\nfirst-to-file rule, 31 U.S.C. § 3730(b)(5), is nonjurisdictional\\n\\nand that we have jurisdiction over McGuire's crossclaim.10\\n\\n \\\"Characterizing a rule as jurisdictional renders it\\n\\nunique in our adversarial system.\\\" Sebelius v. Auburn Reg'l Med.\\n\\nCtr., 568 U.S. 145, 153 (2013). A jurisdictional objection may be\\n\\nraised at any time, even after trial. And a trial court without\\n\\njurisdiction lacks \\\"all authority to hear a case.\\\"11 United States\\n\\nv. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015).\\n\\n\\n 10 McGuire argues that the district court erred in holding\\nthat his crossclaim for declaratory judgment under paragraph\\n3730(d)(1) is subject to the first-to-file rule. Cunningham, 202\\nF. Supp. 3d at 203. We need not reach this argument because even\\nif the first-to-file rule does not apply to McGuire's crossclaim,\\nit applies to his underlying action against Millennium. And\\nbecause that action eventually gave rise to McGuire's crossclaim,\\nwe must assure ourselves of the district court's jurisdiction.\\n 11 So even in a case like this one, in which seven years\\nhave passed since McGuire first filed his complaint, a\\n\\n\\n - 16 -\\n\\f The Supreme Court has attempted to \\\"ward off profligate\\n\\nuse of the term 'jurisdiction.'\\\" Auburn Reg'l Med. Ctr., 568 U.S.\\n\\nat 153. As such, it has held that we must apply a \\\"readily\\n\\nadministrable bright line\\\" rule and see if Congress has \\\"clearly\\n\\nstate[d]\\\" that the provision under review is jurisdictional.\\n\\nArbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).\\n\\n In considering this issue, we do not write on a clean\\n\\nslate. As the district court quite properly noted, this court has\\n\\nseveral times characterized the first-to-file rule as\\n\\njurisdictional. See United States ex rel. Wilson v. Bristol-Myers\\n\\nSquibb, Inc., 750 F.3d 111, 117 (1st Cir. 2014); United States ex\\n\\nrel. Heineman-Guta v. Guidant Corp., 718 F.3d 28, 34 (1st Cir.\\n\\n2013); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P.,\\n\\n579 F.3d 13, 16, 33 (1st Cir. 2009).\\n\\n While we are \\\"ordinarily 'constrained by prior panel\\n\\ndecisions directly (or even closely) on point,'\\\" we are not so\\n\\nbound when \\\"non-controlling authority that postdates the decision\\n\\n. . . offer[s] 'a compelling reason for believing that the former\\n\\npanel, in light of new developments, would change its collective\\n\\nmind.\\\" Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 96\\n\\n(1st Cir. 2012) (quoting United States v. Guzmán, 419 F.3d 27, 31\\n\\n\\njurisdictional objection may result in dismissal. And that could\\nmean \\\"many months of work on the part of the attorneys and the\\ncourt may be wasted.\\\" Henderson ex rel. Henderson v. Shinseki,\\n562 U.S. 428, 435 (2011).\\n\\n\\n - 17 -\\n\\f(1st Cir. 2005)). There are several compelling reasons for such\\n\\na belief here.\\n\\n First, new developments cast serious doubt on our prior\\n\\ncharacterization of the first-to-file rule as jurisdictional. In\\n\\n2015, the Supreme Court decided Kellogg Brown & Root Services,\\n\\nInc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015), a\\n\\nqui tam case. Carter \\\"addressed the operation of the first-to-\\n\\nfile bar on decidedly nonjurisdictional terms, raising the issue\\n\\nafter it decided a nonjurisdictional statute of limitations\\n\\nissue.\\\" United States ex rel. Heath v. AT & T, Inc., 791 F.3d\\n\\n112, 121 n.4 (D.C. Cir. 2015). The clear implication is that the\\n\\nCourt did not consider the first-to-file rule to be jurisdictional.\\n\\nInterpreting Carter, the D.C. Circuit and the Second Circuit have\\n\\nboth held that the first-to-file rule is nonjurisdictional.12 See\\n\\nUnited States ex rel. Hayes v. Allstate Ins. Co., 853 F.3d 80, 85\\n\\n(2d Cir. 2017); Heath, 791 F.3d at 120-21.\\n\\n This court has twice declined to reach the issue of\\n\\nwhether the first-to-file rule is jurisdictional when it was not\\n\\nnecessary to resolution of the appeal, while recognizing that\\n\\nCarter affects the analysis. See United States ex rel. Kelly v.\\n\\nNovartis Pharm. Corp., 827 F.3d 5, 12 n.9 (1st Cir. 2016) (\\\"We\\n\\n\\n 12 The Fourth Circuit has, after Carter, based on circuit\\nprecedent, maintained that the first-to-file rule is\\njurisdictional. See United States ex rel. Carter v. Halliburton\\nCo., 866 F.3d 199, 203 n.1 (4th Cir. 2017).\\n\\n\\n - 18 -\\n\\fassume, but need not decide, that the first-to-file bar remains\\n\\njurisdictional. This position is not without doubt.\\\"); United\\n\\nStates ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 6 n.2 (1st\\n\\nCir. 2015) (\\\"[W]e have no need to consider the relator's back-up\\n\\nargument that the first-to-file bar is not jurisdictional in light\\n\\nof Carter.\\\").\\n\\n Second, this circuit's prior cases labeling the first-\\n\\nto-file rule as jurisdictional, all of which predate Carter,\\n\\ndevoted no substantive analysis to this issue. Duxbury, the oldest\\n\\ncase, listed the first-to-file rule among the FCA's\\n\\n\\\"jurisdictional bars\\\" only in passing as dicta. 579 F.3d at 16.\\n\\nBut it did not ask, and no later First Circuit decision has asked,\\n\\nif Congress clearly stated that the first-to-file rule was\\n\\njurisdictional. Because these rulings failed to apply the Arbaugh\\n\\nclear-statement test, they should be \\\"accorded 'no precedential\\n\\neffect' on the question whether the federal court had authority to\\n\\nadjudicate the claim in suit.\\\" Arbaugh, 546 U.S. at 511 (quoting\\n\\nSteel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91 (1998)).\\n\\n And third, applying the bright line rule leads to only\\n\\none conclusion: the first-to-file rule is nonjurisdictional.\\n\\nNeither statutory text nor context nor legislative history\\n\\nsuggests otherwise. See Kwai Fun Wong, 135 S. Ct. at 1632-33\\n\\n(looking to text, context, and legislative history to determine\\n\\nwhether a statutory provision was jurisdictional).\\n\\n\\n - 19 -\\n\\f As always in matters of statutory interpretation, we\\n\\nstart with the text. United States v. Musso, 914 F.3d 26, 30 (1st\\n\\nCir. 2019). Paragraph 3730(b)(5) provides that \\\"no person other\\n\\nthan the Government may intervene or bring a related action based\\n\\non the facts underlying the pending action.\\\" 31 U.S.C.\\n\\n§ 3730(b)(5). As the D.C. Circuit recognized, this \\\"language 'does\\n\\nnot speak in jurisdictional terms or refer in any way to the\\n\\njurisdiction of the district courts.'\\\" Heath, 791 F.3d at 120\\n\\n(quoting Arbaugh, 546 U.S. at 515).\\n\\n We next look to context. Paragraph 3730(b)(5) does not\\n\\nspeak in jurisdictional terms; nearby provisions, by contrast,\\n\\nexplicitly do so. Cf. Musso, 914 F.3d at 31 (drawing a negative\\n\\ninference from word choices made in neighboring statutory text).\\n\\nFor instance, paragraph 3730(e)(1) provides, \\\"No court shall have\\n\\njurisdiction over an action brought by a former or present member\\n\\nof the armed forces . . . against a member of the armed forces\\n\\narising out of such person's service in the armed forces.\\\" 31\\n\\nU.S.C. § 3730(e)(1). And paragraph 3730(e)(2) states, \\\"No court\\n\\nshall have jurisdiction over an action brought . . . against a\\n\\nMember of Congress, a member of the judiciary, or a senior\\n\\nexecutive branch official if the action is based on evidence or\\n\\ninformation known to the Government when the action was brought.\\\"\\n\\nId. § 3730(e)(2). So, as the D.C. Circuit recognized, \\\"[w]hen\\n\\nCongress wanted limitations on False Claims Act suits to operate\\n\\n\\n - 20 -\\n\\fwith jurisdictional force, it said so explicitly.\\\" Heath, 791\\n\\nF.3d at 120.\\n\\n And finally, as a check to confirm the accuracy of our\\n\\ntextual analysis, we turn to legislative history. See Kwai Fun\\n\\nWong, 135 S. Ct. at 1633 (\\\"[E]ven assuming legislative history\\n\\nalone could provide a clear statement (which we doubt), none does\\n\\nso here.\\\"). Congress added the first-to-file rule when it amended\\n\\nthe FCA in 1986. The Senate Report states that the purpose of the\\n\\nfirst-to-file rule was to clarify that \\\"only the Government may\\n\\nintervene in a qui tam action\\\" and that \\\"private enforcement under\\n\\nthe civil False Claims Act is not meant to produce class actions\\n\\nor multiple separate suits based on identical facts and\\n\\ncircumstances.\\\" S. Rep. No. 99-345, at 25. The first-to-file\\n\\nrule advances this goal even when the provision is not\\n\\njurisdictional.\\n\\n Finding Congress had made no clear statement that the\\n\\nrule was jurisdictional, the D.C. Circuit held that \\\"the first-\\n\\nto-file rule bears only on whether a qui tam plaintiff has properly\\n\\nstated a claim.\\\" Heath, 791 F.3d at 121. The Second Circuit,\\n\\nrelying heavily on Heath, reached the same conclusion. Hayes, 853\\n\\nF.3d at 85-86. Given Carter, Heath, Hayes, and the Supreme Court's\\n\\nclear statement rule, there is a compelling reason to believe that\\n\\nprior panels would no longer view the first-to-file rule as\\n\\n\\n\\n\\n - 21 -\\n\\fjurisdictional. For the same reasons, we now hold that the first-\\n\\nto-file rule is not jurisdictional.\\n\\n Because the first-to-file rule is not jurisdictional,\\n\\nthe district court had subject-matter jurisdiction over McGuire's\\n\\nclaim against Millennium. The district court also had subject-\\n\\nmatter jurisdiction over McGuire's crossclaim under 28 U.S.C.\\n\\n§§ 1331 and 2201. And we have jurisdiction under 28 U.S.C. § 1291.\\n\\n III.\\n\\n The remaining question is whether, under 31 U.S.C.\\n\\n§ 3730(d)(1), McGuire is entitled to the relator's share of the\\n\\ngovernment's settlement with Millennium.13 In assessing this\\n\\nquestion, we confine our review to the pleadings and to \\\"facts\\n\\nsusceptible to judicial notice.\\\"14 Haley, 657 F.3d at 46.\\n\\n As we demonstrate below, the crucial component of this\\n\\nquestion, as framed in this case, is whether McGuire was the first-\\n\\nto-file relator. Rather than remand, we address the first-to-file\\n\\n\\n\\n 13 The district court purported to deny Cunningham's\\n12(b)(6) motion, but only after granting his 12(b)(1) motion. We\\nhave noted that \\\"if the court lacks subject matter jurisdiction,\\nassessment of the merits becomes a matter of purely academic\\ninterest.\\\" Deniz v. Mun. of Guaynabo, 285 F.3d 142, 150 (1st Cir.\\n2002). Deciding a Rule 12(b)(6) motion after finding no subject-\\nmatter jurisdiction is \\\"gratuitous.\\\" Id. at 149.\\n 14 The district court analyzed Cunningham's motion to\\ndismiss as a factual challenge under Rule 12(b)(1) and so engaged\\nits \\\"broad authority\\\" to look outside the pleadings \\\"to determine\\nits own jurisdiction.\\\" Valentin v. Hosp. Bella Vista, 254 F.3d\\n358, 363 (1st Cir. 2001).\\n\\n\\n - 22 -\\n\\fissue as a matter of law because it has been fully briefed, because\\n\\nneither party suggests that the issue requires remand, and because\\n\\nthe basic facts are uncontested. See G. & C. Merriam Co. v.\\n\\nWebster Dictionary Co., 639 F.2d 29, 40 (1st Cir. 1980); see also\\n\\nLevy v. Lexington Cty., S.C., 589 F.3d 708, 716 (4th Cir. 2009);\\n\\nLNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d 454, 464\\n\\n(2d Cir. 1999).\\n\\n Subsection 3730(d), entitled \\\"Award to qui tam\\n\\nplaintiff,\\\" provides in relevant part:\\n\\n If the Government proceeds with an action\\n brought by a person under subsection (b), such\\n person shall, subject to the second sentence\\n of this paragraph, receive at least 15 percent\\n but not more than 25 percent of the proceeds\\n of the action or settlement of the claim,\\n depending upon the extent to which the person\\n substantially contributed to the prosecution\\n of the action.\\n\\n31 U.S.C. § 3730(d)(1). We look to whether the government's\\n\\nrecovery from Millennium constitutes the \\\"proceeds of the . . .\\n\\nsettlement of the claim\\\" McGuire brought. See Rille v.\\n\\nPricewaterhouseCoopers LLP, 803 F.3d 368, 373 (8th Cir. 2015) (en\\n\\nbanc) (\\\"[A] relator seeking recovery must establish that 'there\\n\\nexists [an] overlap between Relator's allegations and the conduct\\n\\ndiscussed in the settlement agreement.'\\\" (quoting United States\\n\\nex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 651 (6th\\n\\nCir. 2003))).\\n\\n\\n\\n\\n - 23 -\\n\\f To be entitled to the relator's share under paragraph\\n\\n3730(d)(1), a relator must be a person who \\\"br[ings]\\\" \\\"an action\\n\\nunder . . . subsection [3730(b)].\\\" 31 U.S.C. § 3730(d)(1); Rille,\\n\\n803 F.3d at 372 (\\\"The relators' right to recovery is limited to a\\n\\nshare of the settlement of the claim that they brought.\\\"). The\\n\\nfirst-to-file rule bars any \\\"person other than the Government\\\"\\n\\nfrom \\\"bring[ing] a related action based on the facts underlying\\n\\nthe pending action.\\\" 31 U.S.C. § 3730(b)(5). So only the first-\\n\\nto-file relator can claim the relator's share of the settlement\\n\\nproceedings for each claim.\\n\\n Nearly all courts share this conclusion. See United\\n\\nStates ex rel. Shea v. Cellco P'ship, 863 F.3d 923, 927 (D.C. Cir.\\n\\n2017) (\\\"The first-to-file bar thereby ensures only one relator\\n\\nwill share in the government's recovery . . . .\\\"); United States\\n\\nex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149\\n\\nF.3d 227, 231 (3d Cir. 1998) (\\\"[N]o qui tam plaintiff may . . .\\n\\nshare in a government settlement if his or her allegations repeat\\n\\nclaims in a previously filed action.\\\"); see also United States ex\\n\\nrel. Merena v. SmithKline Beecham Corp., 205 F.3d 97, 103-06 (3d\\n\\nCir. 2000) (Alito, J.) (concluding \\\"that a relator whose claim is\\n\\nsubject to dismissal under [the public-disclosure rule in 31 U.S.C.\\n\\n§] 3730(e)(4) may not receive any share of the proceeds\\n\\n\\n\\n\\n - 24 -\\n\\fattributable to that claim,\\\" id. at 106); Fed. Recovery Servs.,\\n\\nInc. v. United States, 72 F.3d 447, 450 (5th Cir. 1995).15\\n\\n This conclusion also aligns with the policies underlying\\n\\nthe first-to-file rule. The rule is \\\"part of the larger balancing\\n\\nact of the FCA's qui tam provision, which 'attempts to reconcile\\n\\ntwo conflicting goals, specifically, preventing opportunistic\\n\\nsuits, on the one hand, while encouraging citizens to act as\\n\\nwhistleblowers, on the other.'\\\" Wilson, 750 F.3d at 117 (quoting\\n\\nLaCorte, 149 F.3d at 233). \\\"The first-to-file bar operates on the\\n\\nrecognition that, because relators can bring suit without having\\n\\nsuffered a personal injury, countless plaintiffs in theory could\\n\\nfile a qui tam action based on the same fraud and then share in\\n\\nthe proceeds.\\\" Shea, 863 F.3d at 927. Allowing a follow-on filer\\n\\nto siphon off the first-filed suit's proceeds \\\"weaken[s] the\\n\\nincentive to dig out the facts and launch the initial action.\\\"\\n\\nUnited States ex rel. Chovanec v. Apria Healthcare Grp. Inc., 606\\n\\nF.3d 361, 364 (7th Cir. 2010).\\n\\n To resolve the first-to-file issue here, we ask whether\\n\\nCunningham's amended complaint \\\"contained 'all the essential\\n\\n\\n\\n\\n 15 See also United States ex rel. Dhillon v. Endo Pharm.,\\n617 F. App'x 208 (3d Cir. 2015) (unpublished) (summarily affirming\\nthe district court's finding that only the first-to-file relator\\nwas entitled to the relator's share of a settlement). But see\\nUnited States ex rel. Doghramji v. Cmty. Health Sys., Inc., 666 F.\\nApp'x 410, 418 (6th Cir. 2016) (rejecting this conclusion).\\n\\n\\n - 25 -\\n\\ffacts'\\\" of the fraud McGuire alleged.16 United States ex rel. Ven-\\n\\nA-Care of the Fla. Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d\\n\\n932, 938 (1st Cir. 2014) (quoting Heineman-Guta, 718 F.3d at 34).\\n\\nWhile this \\\"essential facts\\\" standard does not require \\\"identity\\n\\nbetween the two complaints to trigger the first-to-file rule,\\\"\\n\\nid., the rule still may bar a different \\\"claim even if that claim\\n\\nincorporates somewhat different details,\\\" id. (quoting Wilson, 750\\n\\nF.3d at 118). The essential facts test \\\"presents a question of\\n\\nlaw about the statutorily required threshold for notifying the\\n\\ngovernment of the fraud alleged in the later-filed suit.\\\" Id.\\n\\nOur review is de novo.17 Id.\\n\\n We apply the essential facts test by comparing\\n\\nCunningham's amended complaint and McGuire's original complaint.\\n\\nSee Heath, 791 F.3d at 121 (\\\"Similarity is assessed by comparing\\n\\n\\n\\n 16 Other circuits, such as the D.C. Circuit, preclude\\nrecovery from not-first-to-file relators when the first-filed\\ncomplaint alleges the \\\"material elements of fraud\\\" at issue and\\n\\\"equip[s] the government to investigate\\\" that fraud. United States\\nex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir. 2011).\\nFor purposes of this case, we see no difference between this\\nstandard and the essential facts test.\\n 17 Cunningham argues that the settlement independently\\nreserved this issue for the district court to resolve as a matter\\nof fact, and that we must accept the district court's findings.\\nThe premise is wrong -- the settlement says nothing of the sort.\\nIt states only that the district court \\\"retain[ed] jurisdiction\\\"\\nover this issue, and that the relators \\\"reserve[d] their rights\\nagainst Millennium to seek attorneys' fees, costs and expenses\\\"\\nunder applicable provisions. It does not displace normal first-\\nto-file law.\\n\\n\\n - 26 -\\n\\fthe complaints side-by-side . . . .\\\"); Ven-A-Care, 772 F.3d at 938\\n\\n(\\\"[W]e compare the Ven-A-Care complaint to the Sun and Hamilton\\n\\ncomplaint.\\\"); In re Nat. Gas Royalties Qui Tam Litig. (CO2\\n\\nAppeals), 566 F.3d 956, 964 (10th Cir. 2009) (\\\"The first-to-file\\n\\nbar is designed to be quickly and easily determinable, simply\\n\\nrequiring a side-by-side comparison of the complaints.\\\"). First-\\n\\nto-file analysis is limited to the four corners of the relevant\\n\\ncomplaints. See Duxbury, 579 F.3d at 33-34 (refusing to consider\\n\\nallegations in a later-filed Information because the relator \\\"had\\n\\nhis opportunity to [include those allegations] when he filed [his]\\n\\nOriginal Complaint\\\"). We conclude, based on those two complaints,\\n\\nthat Cunningham and McGuire do not allege similar frauds, but\\n\\nallege different frauds with different mechanisms.\\n\\n We proceed claim-by-claim. Merena, 205 F.3d at 102\\n\\n(\\\"[T]he court must conduct a claim-by-claim analysis in order to\\n\\ndetermine if section 3730(b)(5) applies.\\\"). Two claims of fraud\\n\\nare relevant here: (1) Millennium's custom profile fraud, and\\n\\n(2) Millennium's point-of-care cup kickback scheme. Cunningham's\\n\\ncomplaint lacks all the essential elements of both claims.\\n\\n Cunningham argues that he was the first to file a claim\\n\\nagainst Millennium for excessive and unnecessary drug testing.\\n\\nBut this is too general an argument. We must look to the actual\\n\\nmechanism (the \\\"essential facts\\\") of the fraud that Cunningham\\n\\nalleged. In his amended complaint, Cunningham alleged that\\n\\n\\n - 27 -\\n\\fMillennium's Physician Billing Model, which involved physicians\\n\\nbilling the government for multiple tests for each point-of-care\\n\\ncup, led to \\\"significantly more testing.\\\" And he alleged that\\n\\nthis increased point-of-care testing led, in turn, to more\\n\\n\\\"confirmatory tests.\\\" But CMS revised its reimbursement rules to\\n\\ndefeat such fraud, so physicians can no longer bill for multiple\\n\\ntests from a single cup. And Cunningham's amended complaint never\\n\\nmentions \\\"standing orders\\\" or \\\"custom profiles,\\\" as McGuire's\\n\\ndoes.\\n\\n Cunningham's allegations do not cover the essential\\n\\nelements of the fraud that McGuire described in his original\\n\\ncomplaint. McGuire alleged that Millennium required physicians to\\n\\nexecute custom profiles. And McGuire alleged that these profiles\\n\\ndirected Millennium to automatically conduct a battery of\\n\\nconfirmatory tests regardless of individual patient need and\\n\\nregardless of what the point-of-care test showed. The fraud\\n\\nMcGuire alleged had a different mechanism (the custom profiles)\\n\\nand focused on a different stage of testing (the confirmatory\\n\\nstage) than the one Cunningham described. McGuire was the first\\n\\nrelator to file a claim including the essential elements of\\n\\nMillennium's custom profile fraud, which the government then\\n\\npursued.\\n\\n Cunningham also argues that he alleged the essential\\n\\nelements of Millennium's point-of-care cup kickback scheme, the\\n\\n\\n - 28 -\\n\\fsecond scheme the government pursued. He says he \\\"alleged\\n\\nMillennium provided test kits at a nominal cost, and encouraged\\n\\ndoctors to bill for numerous tests rather than for just one multi-\\n\\npanel test.\\\" But Cunningham's amended complaint makes only one\\n\\nmention of cost: it says that the point-of-care cups \\\"can be\\n\\npurchased for less than $10.00.\\\" Cunningham did not allege that\\n\\nthis was less than fair market value. And he did not allege that\\n\\nMillennium provided the cups for free in exchange for physicians\\n\\nreferring confirmatory testing. McGuire, by contrast, alleged\\n\\nthat Millennium provided point-of-care cups, \\\"a valuable\\n\\ndiagnostic tool,\\\" to physicians for free to induce them to send\\n\\nconfirmation testing orders to Millennium.\\n\\n Again, Cunningham's allegations do not include the\\n\\nessential elements of the fraud McGuire alleged. Further, the\\n\\nfraud the government pursued was that alleged by McGuire.18 The\\n\\ngovernment alleged that Millennium distributed $5 million worth of\\n\\nfree point-of-care test cups in exchange for the doctors referring\\n\\nthe cups to Millennium for confirmatory testing. This was an\\n\\nillegal kickback because, \\\"absent an applicable statutory\\n\\n\\n\\n\\n 18 McGuire attached the government's complaint in\\nintervention to his crossclaim, so it is properly before us. In\\nany event, the government's complaint would be subject to judicial\\nnotice. See Zucker, 919 F.3d at 651 n.5 (citing E.I. Du Pont de\\nNemours & Co., 791 F.2d at 7 (Breyer, J.)).\\n\\n\\n - 29 -\\n\\fexception[, point-of-care] cups had to be sold at 'fair market\\n\\nvalue' to comply with the Stark Law and Anti-Kickback Statute.\\\"\\n\\n The district court erred when it found that\\n\\n\\\"Cunningham's materials provided the government with 'sufficient\\n\\nnotice to initiate an investigation into [Millennium's] allegedly\\n\\nfraudulent practices.'\\\" Cunningham, 202 F. Supp. 3d at 206\\n\\n(quoting Ven-A-Care, 772 F.3d at 938). Mere notice -- particularly\\n\\nof a different fraud than the government chose to pursue -- is not\\n\\nenough. As we made clear in Ven-A-Care, \\\"we must ask not merely\\n\\nwhether the first-filed complaint provides some evidence from\\n\\nwhich an astute government official could arguably have been put\\n\\non notice, but also whether the first complaint contained all the\\n\\nessential facts of the fraud it alleges.\\\" 772 F.3d at 938\\n\\n(emphasis added) (internal citation and quotation marks omitted).\\n\\n McGuire has established that he was the first to file a\\n\\nclaim alleging the essential facts of Millennium's custom profile\\n\\nfraud and point-of-care cup kickback scheme. He has also\\n\\nadequately pleaded that the government's recovery from Millennium\\n\\nconstitutes the \\\"proceeds of the . . . settlement of the claim[s]\\\"\\n\\nhe brought.19 31 U.S.C. § 3730(d)(1).\\n\\n\\n 19There is no assertion by the government or anyone else\\nthat McGuire did not plead the conduct that formed the basis of\\nthe claims the government ultimately settled. We need not address\\nthe issue decided by the Eighth Circuit in Rille. See 803 F.3d at\\n374 (remanding for further factual development in a case in which\\n\\\"[t]he government objected to [the relators'] recovery on the\\n\\n\\n - 30 -\\n\\f IV.\\n\\n We reverse20 and remand for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\nground that the relators' complaint did not plead the conduct that\\nformed the basis of the claims that the government ultimately\\nsettled,\\\" id. at 371).\\n 20 Our holding moots McGuire's appeal of the district\\ncourt's denial of his motion to reconsider.\\n\\n\\n - 31 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1963,"cells":{"id":{"kind":"number","value":4617829,"string":"4,617,829"},"name":{"kind":"string","value":"Erika D. LUCEUS, Plaintiff, Appellant, v. State of RHODE ISLAND; Rhode Island Department of Labor and Training, Defendants, Appellees, Robert Langlais ; Kathy Catanzaro; Rose Lemoine; Jessica Johnson; Jason Bliss Wohlers, Defendants."},"name_abbreviation":{"kind":"string","value":"Luceus v. State of Rhode Island"},"decision_date":{"kind":"string","value":"2019-05-08"},"docket_number":{"kind":"string","value":"18-1377P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Thompson, Souter, Lipez\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\nNo. 18-1377\\n\\n ERIKA D. LUCEUS,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n STATE OF RHODE ISLAND; RHODE ISLAND DEPARTMENT OF\\n LABOR AND TRAINING,\\n\\n Defendants, Appellees,\\n\\n ROBERT LANGLAIS; KATHY CATANZARO; ROSE LEMOINE;\\n JESSICA JOHNSON; JASON BLISS WOHLERS,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF RHODE ISLAND\\n\\n [Hon. William E. Smith, U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Circuit Judge,\\n Souter, Associate Justice,\\n and Lipez, Circuit Judge.\\n\\n\\n Casby Harrison, III for appellant.\\n Katherine Connolly Sadeck, Special Assistant Attorney\\nGeneral, with whom Michael W. Field, Assistant Attorney General,\\nwas on brief, for appellees.\\n\\n\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f May 8, 2019\\n\\n\\n\\t\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. Erika Luceus, an employee of\\n\\nthe call center of the Rhode Island Department of Labor and\\n\\nTraining, sued the Department and the State of Rhode Island for\\n\\ndiscrimination in violation of Title VII of the Civil Rights Act\\n\\nof 1964. See 42 U.S.C. § 2000e-2. Luceus claimed that the\\n\\nDepartment's promotion practices have a disparate impact on\\n\\nminority employees, and that the Department has declined to promote\\n\\nher because she is black. The District Court granted summary\\n\\njudgment to the defendants, from which Luceus appeals. We affirm.\\n\\n I\\n\\n Summary judgment is warranted if \\\"there is no genuine\\n\\ndispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.\\\" Fed. R. Civ. P. 56(a). We review\\n\\nthe District Court's grant of summary judgment de novo. Jones v.\\n\\nCity of Boston, 752 F.3d 38, 46 (1st Cir. 2014).\\n\\n A\\n\\n We begin with Luceus's claim of disparate impact. Title\\n\\nVII bars the use of facially neutral \\\"'employment practices that\\n\\ncause[] a disparate impact on the basis of race' unless those\\n\\npractices are justified by business necessity.\\\" Id. (quoting 42\\n\\nU.S.C. § 2000e-2(k)). Luceus alleges that the Department's use of\\n\\n\\\"three-day-rule assignments\\\" as a first step leading to promotion\\n\\nof lower-level employees at the call center has a disparate impact\\n\\non minority employees. A three-day-rule assignment is a temporary\\n\\n\\n - 3 -\\n\\fappointment made by the Department to fill a vacant position.1 The\\n\\nDepartment, however, sometimes makes such appointments permanent.\\n\\nLuceus alleges that three-day-rule assignments are awarded more\\n\\noften to white employees than minority employees, and that white\\n\\nemployees thus are more likely to receive permanent promotions.\\n\\nThe record shows that between 2009 and September 2014 (when she\\n\\nfirst complained to the Department's human resources office), only\\n\\none minority employee received a three-day-rule assignment, as\\n\\ncompared with seven white employees. Luceus also provides\\n\\naffidavits from eight coworkers who attest that minority employees\\n\\nare less likely to receive three-day-rule assignments.\\n\\n This evidence, however, is not enough by itself to make\\n\\na prima facie showing of disparate impact. Except in unusual cases\\n\\nof overwhelming evidence, intuition is not to be trusted, and in\\n\\norder to reach the required prima facie threshold a plaintiff\\n\\nordinarily must demonstrate that there is \\\"a significant\\n\\nstatistical disparity\\\" between the employment outcomes for white\\n\\nand non-white employees. Ricci v. DeStefano, 557 U.S. 557, 587\\n\\n(2009). To be sure, \\\"the absence of such analyses, by itself,\\n\\ndoes not automatically doom the plaintiff's efforts.\\\" EEOC v.\\n\\n\\n 1 The term \\\"three-day-rule assignment\\\" derives from a\\nprovision in the relevant State collective-bargaining agreement\\nthat requires a union employee to be paid the amount associated\\nwith a temporarily assigned position if the employee stays in the\\nposition for at least three days. Luceus v. Rhode Island, No. 15-\\ncv-489, 2018 WL 1626263, at *1 (D.R.I. Mar. 30, 2018).\\n\\n\\n - 4 -\\n\\fSteamship Clerks Union, Local 1066, 48 F.3d 594, 606 (1st Cir.\\n\\n1995). Statistical analysis may not be necessary in a case with\\n\\na \\\"singularly compelling factual context,\\\" in which \\\"the logical\\n\\nforce of the conclusion that the numbers suggest\\\" is obvious. Id.\\n\\nat 604-605. But the data provided by Luceus do not bespeak such\\n\\nan exceptional case. This is the usual case, in which evidence of\\n\\na statistical character is needed to show that any disparities are\\n\\n\\\"unlikely to have occurred by chance.\\\" Fudge v. City of Providence\\n\\nFire Dep't, 766 F.2d 650, 658 (1st Cir. 1985)\\n\\n Here, Luceus has failed to demonstrate \\\"a significant\\n\\nstatistical disparity\\\" on the basis of race. Ricci, 557 U.S. at\\n\\n587. She has not presented any expert testimony or statistical\\n\\ncomputations demonstrating that the alleged disparities in three-\\n\\nday-rule assignments did not \\\"occur[] by chance.\\\" Fudge, 766 F.2d\\n\\nat 658. Indeed, she has not even presented reliable data on which\\n\\na statistical conclusion would rest, because she has not\\n\\nestablished the racial composition of the pools of employees\\n\\neligible for three-day-rule assignments in the instances she\\n\\ncites. Hence, the District Court explained that the record does\\n\\nnot indicate \\\"the number of management-ready minority and white\\n\\nunion members\\\" at the call center where Luceus works. Luceus v.\\n\\nRhode Island, No. 15-cv-489, 2018 WL 1626263, at *7 (D.R.I. Mar.\\n\\n30, 2018). This \\\"fail[ure] to provide important information\\n\\nregarding the pool of applicants\\\" is a critical \\\"flaw[] in the\\n\\n\\n - 5 -\\n\\fstatistical evidence.\\\" See LeBlanc v. Great Am. Ins. Co., 6 F.3d\\n\\n836, 848 (1st Cir. 1993).\\n\\n Although this deficiency alone would doom the disparate\\n\\nimpact claim, the defendants offered evidence that the racial\\n\\ndisparities alleged by Luceus were not statistically significant.\\n\\nUsing the data she provided, they presented expert analysis\\n\\ndemonstrating that there was \\\"no statistically significant\\n\\nevidence of a disparate impact\\\" stemming from the three-day-rule\\n\\nassignments that were the subject of Luceus's complaint. Affidavit\\n\\nof Dr. Craig Lawson Moore ¶¶ 47-49. Luceus offers no comparable\\n\\nrebuttal of this analysis.\\n\\n In sum, based on the record, we conclude that this is\\n\\nnot a case in which Luceus can show a disparate impact in the\\n\\nabsence of statistical and statistically significant evidence.\\n\\nCf. Steamship Clerks, 48 F.3d at 606. Because she has failed to\\n\\nprovide such evidence, the District Court correctly granted\\n\\nsummary judgment to the defendants on her claim of disparate\\n\\nimpact.\\n\\n B\\n\\n Luceus also raises a claim of disparate treatment in\\n\\nviolation of the Title VII bar against employers \\\"treat[ing] some\\n\\npeople less favorably than others because of their race.\\\" Int’l\\n\\nBhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977);\\n\\nsee 42 U.S.C. § 2000e-2(a). Luceus argues that the Department's\\n\\n\\n - 6 -\\n\\fdecision not to promote her was motivated by discriminatory racial\\n\\nanimus.\\n\\n Because Luceus has not provided direct proof of\\n\\ndiscriminatory animus, the burden-shifting sequence set forth in\\n\\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973),\\n\\napplies. At the outset, Luceus must establish a prima facie case\\n\\nby showing that (1) she is \\\"a member of a protected class\\\"; (2) she\\n\\nis \\\"qualified\\\" for the job she seeks; (3) she has \\\"suffer[ed] an\\n\\nadverse employment action at the hands of her employer\\\"; and (4)\\n\\nthere is \\\"some evidence of a causal connection between her\\n\\nmembership in a protected class and the adverse employment action.\\\"\\n\\nBhatti v. Trustees of Boston U., 659 F.3d 64, 70 (1st Cir. 2011).\\n\\nOnce she has established a prima facie case, the burden of\\n\\nproduction shifts to the defendants, who \\\"must establish a\\n\\nlegitimate, nondiscriminatory justification for the adverse\\n\\nemployment action.\\\" Ray v. Ropes & Gray LLP, 799 F.3d 99, 113\\n\\n(1st Cir. 2015). If the defendants meet their burden on that\\n\\nissue, they are entitled to summary judgment unless Luceus\\n\\n\\\"raise[s] a genuine issue of material fact that 'the reasons\\n\\noffered by [the defendants] were a pretext for discrimination.'\\\"\\n\\nId. (quoting Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st\\n\\nCir. 2012)).\\n\\n Like the District Court, however, \\\"[w]e may 'bypass the\\n\\nprima facie case issue.'\\\" Cham, 685 F.3d at 95 (quoting Freadman\\n\\n\\n - 7 -\\n\\fv. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007));\\n\\nsee Luceus, 2018 WL 1626263, at *7. Assuming without deciding\\n\\nthat Luceus has established a prima facie case of disparate\\n\\ntreatment, it is nonetheless clear that she \\\"'has not mustered\\n\\nenough evidence for a reasonable jury to conclude that [the\\n\\ndefendants'] stated reason'\\\" for failing to promote her \\\"was\\n\\npretextual.\\\" Cham, 685 F.3d at 95-96 (quoting Freadman, 484 F.3d\\n\\nat 100).\\n\\n The Department's stated justification for declining to\\n\\npromote Luceus was her disruptive conduct in the workplace: it\\n\\npresented evidence that she was involved in an altercation with a\\n\\ncoworker in which the two had to be physically separated, and that\\n\\nshe had \\\"a history of returning late from work breaks, refusing to\\n\\ncollaborate with her coworkers, and posting signs in her cubicle\\n\\nto provoke management.\\\" Luceus, 2018 WL 1626263, at *7. Luceus\\n\\ndoes not offer enough evidence to rebut that legitimate,\\n\\nnondiscriminatory justification. She does not dispute most of the\\n\\nDepartment's allegations of disruptive conduct and, indeed,\\n\\nexplicitly acknowledges the truth of several of them. Defendants'\\n\\nStatement of Undisputed Facts ¶¶ 184-194, 202-218. She also fails\\n\\nto identify other, white employees \\\"similarly situated\\\" to her \\\"in\\n\\nall relevant respects\\\" who were \\\"treated differently by the\\n\\nemployer,\\\" as might permit a jury to find that the employer's\\n\\nreason was pretextual. Ray, 799 F.3d at 114 (quoting Kosereis v.\\n\\n\\n - 8 -\\n\\fRhode Island, 331 F.3d 207, 214 (1st Cir. 2003)); see Luceus, 2018\\n\\nWL 1626263, at *8 (explaining that Luceus \\\"has not pointed to\\n\\nsomeone promoted in her stead that had, for example, a comparable\\n\\nhistory of workplace recalcitrance\\\").\\n\\n The primary evidence Luceus offers to counter the\\n\\ndefendants' stated justification is the data she offers to support\\n\\nher disparate impact claim. But \\\"the central focus\\\" of a disparate\\n\\ntreatment claim is \\\"'less whether a pattern of discrimination\\n\\nexisted and more how a particular individual was treated, and\\n\\nwhy.'\\\" Ray, 799 F.3d at 116 (quoting LeBlanc, 6 F.3d at 848).\\n\\nFor that reason, \\\"'statistical evidence of a company's general\\n\\nhiring patterns, although relevant, carries less probative\\n\\nweight'\\\" in a disparate treatment claim, \\\"and 'in and of itself[]\\n\\nrarely suffices to rebut an employer's legitimate,\\n\\nnondiscriminatory rationale for its decision.'\\\" Id. (quoting\\n\\nLeBlanc, 6 F.3d at 848). Nor is there any basis in the record to\\n\\ntreat this case as exceptional, not when Luceus has failed to deny\\n\\nmost of the charges of workplace misbehavior and has failed to\\n\\nsupport the disparate impact claim itself. Summary judgment to\\n\\nthe defendants on this claim was soundly granted.\\n\\n II\\n\\n Before us, Luceus also raises a variety of claims based\\n\\non Rhode Island law. She says that the Department has violated\\n\\nthe State’s equal opportunity laws, and that three-day-rule\\n\\n\\n - 9 -\\n\\fassignments likewise violate State law. See Appellant Br. 31-34,\\n\\n41-51.\\n\\n Luceus's notice of appeal, however, specified that she\\n\\nwas appealing only the District Court's judgment with respect to\\n\\nthe Title VII disparate impact and disparate treatment claims.\\n\\nThat limitation is fatal to the issues she now wishes to raise\\n\\nunder Rhode Island law. The general rule is that when \\\"an\\n\\nappellant . . . chooses to designate specific determinations in\\n\\n[her] notice of appeal—rather than simply appealing from the entire\\n\\njudgment—only the specified issues may be raised on appeal.\\\"\\n\\nConstructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co. of\\n\\nPuerto Rico, 467 F.3d 38, 43 (1st Cir. 2006) (quoting United States\\n\\nv. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.\\n\\n1999)). Luceus identifies no reason for departing from that rule\\n\\nhere.\\n\\n III\\n\\n We affirm the District Court's grant of summary judgment\\n\\nto the defendants on Luceus's claims of disparate impact and\\n\\ndisparate treatment under Title VII.\\n\\n\\n\\n\\n - 10 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4395082/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"THOMPSON"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"LIPEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4617829/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Erika D. LUCEUS, Plaintiff, Appellant, v. State of RHODE ISLAND; Rhode Island Department of Labor and Training, Defendants, Appellees, Robert Langlais ; Kathy Catanzaro; Rose Lemoine; Jessica Johnson; Jason Bliss Wohlers, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\nNo. 18-1377\n\n ERIKA D. LUCEUS,\n\n Plaintiff, Appellant,\n\n v.\n\n STATE OF RHODE ISLAND; RHODE ISLAND DEPARTMENT OF\n LABOR AND TRAINING,\n\n Defendants, Appellees,\n\n ROBERT LANGLAIS; KATHY CATANZARO; ROSE LEMOINE;\n JESSICA JOHNSON; JASON BLISS WOHLERS,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF RHODE ISLAND\n\n [Hon. William E. Smith, U.S. District Judge]\n\n\n Before\n\n Thompson, Circuit Judge,\n Souter, Associate Justice,\n and Lipez, Circuit Judge.\n\n\n Casby Harrison, III for appellant.\n Katherine Connolly Sadeck, Special Assistant Attorney\nGeneral, with whom Michael W. Field, Assistant Attorney General,\nwas on brief, for appellees.\n\n\n\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f May 8, 2019\n\n\n\t\n\n\n\n\n - 2 -\n\f SOUTER, Associate Justice. Erika Luceus, an employee of\n\nthe call center of the Rhode Island Department of Labor and\n\nTraining, sued the Department and the State of Rhode Island for\n\ndiscrimination in violation of Title VII of the Civil Rights Act\n\nof 1964. See 42 U.S.C. § 2000e-2. Luceus claimed that the\n\nDepartment's promotion practices have a disparate impact on\n\nminority employees, and that the Department has declined to promote\n\nher because she is black. The District Court granted summary\n\njudgment to the defendants, from which Luceus appeals. We affirm.\n\n I\n\n Summary judgment is warranted if \"there is no genuine\n\ndispute as to any material fact and the movant is entitled to\n\njudgment as a matter of law.\" Fed. R. Civ. P. 56(a). We review\n\nthe District Court's grant of summary judgment de novo. Jones v.\n\nCity of Boston, 752 F.3d 38, 46 (1st Cir. 2014).\n\n A\n\n We begin with Luceus's claim of disparate impact. Title\n\nVII bars the use of facially neutral \"'employment practices that\n\ncause[] a disparate impact on the basis of race' unless those\n\npractices are justified by business necessity.\" Id. (quoting 42\n\nU.S.C. § 2000e-2(k)). Luceus alleges that the Department's use of\n\n\"three-day-rule assignments\" as a first step leading to promotion\n\nof lower-level employees at the call center has a disparate impact\n\non minority employees. A three-day-rule assignment is a temporary\n\n\n - 3 -\n\fappointment made by the Department to fill a vacant position.1 The\n\nDepartment, however, sometimes makes such appointments permanent.\n\nLuceus alleges that three-day-rule assignments are awarded more\n\noften to white employees than minority employees, and that white\n\nemployees thus are more likely to receive permanent promotions.\n\nThe record shows that between 2009 and September 2014 (when she\n\nfirst complained to the Department's human resources office), only\n\none minority employee received a three-day-rule assignment, as\n\ncompared with seven white employees. Luceus also provides\n\naffidavits from eight coworkers who attest that minority employees\n\nare less likely to receive three-day-rule assignments.\n\n This evidence, however, is not enough by itself to make\n\na prima facie showing of disparate impact. Except in unusual cases\n\nof overwhelming evidence, intuition is not to be trusted, and in\n\norder to reach the required prima facie threshold a plaintiff\n\nordinarily must demonstrate that there is \"a significant\n\nstatistical disparity\" between the employment outcomes for white\n\nand non-white employees. Ricci v. DeStefano, 557 U.S. 557, 587\n\n(2009). To be sure, \"the absence of such analyses, by itself,\n\ndoes not automatically doom the plaintiff's efforts.\" EEOC v.\n\n\n 1 The term \"three-day-rule assignment\" derives from a\nprovision in the relevant State collective-bargaining agreement\nthat requires a union employee to be paid the amount associated\nwith a temporarily assigned position if the employee stays in the\nposition for at least three days. Luceus v. Rhode Island, No. 15-\ncv-489, 2018 WL 1626263, at *1 (D.R.I. Mar. 30, 2018).\n\n\n - 4 -\n\fSteamship Clerks Union, Local 1066, 48 F.3d 594, 606 (1st Cir.\n\n1995). Statistical analysis may not be necessary in a case with\n\na \"singularly compelling factual context,\" in which \"the logical\n\nforce of the conclusion that the numbers suggest\" is obvious. Id.\n\nat 604-605. But the data provided by Luceus do not bespeak such\n\nan exceptional case. This is the usual case, in which evidence of\n\na statistical character is needed to show that any disparities are\n\n\"unlikely to have occurred by chance.\" Fudge v. City of Providence\n\nFire Dep't, 766 F.2d 650, 658 (1st Cir. 1985)\n\n Here, Luceus has failed to demonstrate \"a significant\n\nstatistical disparity\" on the basis of race. Ricci, 557 U.S. at\n\n587. She has not presented any expert testimony or statistical\n\ncomputations demonstrating that the alleged disparities in three-\n\nday-rule assignments did not \"occur[] by chance.\" Fudge, 766 F.2d\n\nat 658. Indeed, she has not even presented reliable data on which\n\na statistical conclusion would rest, because she has not\n\nestablished the racial composition of the pools of employees\n\neligible for three-day-rule assignments in the instances she\n\ncites. Hence, the District Court explained that the record does\n\nnot indicate \"the number of management-ready minority and white\n\nunion members\" at the call center where Luceus works. Luceus v.\n\nRhode Island, No. 15-cv-489, 2018 WL 1626263, at *7 (D.R.I. Mar.\n\n30, 2018). This \"fail[ure] to provide important information\n\nregarding the pool of applicants\" is a critical \"flaw[] in the\n\n\n - 5 -\n\fstatistical evidence.\" See LeBlanc v. Great Am. Ins. Co., 6 F.3d\n\n836, 848 (1st Cir. 1993).\n\n Although this deficiency alone would doom the disparate\n\nimpact claim, the defendants offered evidence that the racial\n\ndisparities alleged by Luceus were not statistically significant.\n\nUsing the data she provided, they presented expert analysis\n\ndemonstrating that there was \"no statistically significant\n\nevidence of a disparate impact\" stemming from the three-day-rule\n\nassignments that were the subject of Luceus's complaint. Affidavit\n\nof Dr. Craig Lawson Moore ¶¶ 47-49. Luceus offers no comparable\n\nrebuttal of this analysis.\n\n In sum, based on the record, we conclude that this is\n\nnot a case in which Luceus can show a disparate impact in the\n\nabsence of statistical and statistically significant evidence.\n\nCf. Steamship Clerks, 48 F.3d at 606. Because she has failed to\n\nprovide such evidence, the District Court correctly granted\n\nsummary judgment to the defendants on her claim of disparate\n\nimpact.\n\n B\n\n Luceus also raises a claim of disparate treatment in\n\nviolation of the Title VII bar against employers \"treat[ing] some\n\npeople less favorably than others because of their race.\" Int’l\n\nBhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977);\n\nsee 42 U.S.C. § 2000e-2(a). Luceus argues that the Department's\n\n\n - 6 -\n\fdecision not to promote her was motivated by discriminatory racial\n\nanimus.\n\n Because Luceus has not provided direct proof of\n\ndiscriminatory animus, the burden-shifting sequence set forth in\n\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973),\n\napplies. At the outset, Luceus must establish a prima facie case\n\nby showing that (1) she is \"a member of a protected class\"; (2) she\n\nis \"qualified\" for the job she seeks; (3) she has \"suffer[ed] an\n\nadverse employment action at the hands of her employer\"; and (4)\n\nthere is \"some evidence of a causal connection between her\n\nmembership in a protected class and the adverse employment action.\"\n\nBhatti v. Trustees of Boston U., 659 F.3d 64, 70 (1st Cir. 2011).\n\nOnce she has established a prima facie case, the burden of\n\nproduction shifts to the defendants, who \"must establish a\n\nlegitimate, nondiscriminatory justification for the adverse\n\nemployment action.\" Ray v. Ropes & Gray LLP, 799 F.3d 99, 113\n\n(1st Cir. 2015). If the defendants meet their burden on that\n\nissue, they are entitled to summary judgment unless Luceus\n\n\"raise[s] a genuine issue of material fact that 'the reasons\n\noffered by [the defendants] were a pretext for discrimination.'\"\n\nId. (quoting Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st\n\nCir. 2012)).\n\n Like the District Court, however, \"[w]e may 'bypass the\n\nprima facie case issue.'\" Cham, 685 F.3d at 95 (quoting Freadman\n\n\n - 7 -\n\fv. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007));\n\nsee Luceus, 2018 WL 1626263, at *7. Assuming without deciding\n\nthat Luceus has established a prima facie case of disparate\n\ntreatment, it is nonetheless clear that she \"'has not mustered\n\nenough evidence for a reasonable jury to conclude that [the\n\ndefendants'] stated reason'\" for failing to promote her \"was\n\npretextual.\" Cham, 685 F.3d at 95-96 (quoting Freadman, 484 F.3d\n\nat 100).\n\n The Department's stated justification for declining to\n\npromote Luceus was her disruptive conduct in the workplace: it\n\npresented evidence that she was involved in an altercation with a\n\ncoworker in which the two had to be physically separated, and that\n\nshe had \"a history of returning late from work breaks, refusing to\n\ncollaborate with her coworkers, and posting signs in her cubicle\n\nto provoke management.\" Luceus, 2018 WL 1626263, at *7. Luceus\n\ndoes not offer enough evidence to rebut that legitimate,\n\nnondiscriminatory justification. She does not dispute most of the\n\nDepartment's allegations of disruptive conduct and, indeed,\n\nexplicitly acknowledges the truth of several of them. Defendants'\n\nStatement of Undisputed Facts ¶¶ 184-194, 202-218. She also fails\n\nto identify other, white employees \"similarly situated\" to her \"in\n\nall relevant respects\" who were \"treated differently by the\n\nemployer,\" as might permit a jury to find that the employer's\n\nreason was pretextual. Ray, 799 F.3d at 114 (quoting Kosereis v.\n\n\n - 8 -\n\fRhode Island, 331 F.3d 207, 214 (1st Cir. 2003)); see Luceus, 2018\n\nWL 1626263, at *8 (explaining that Luceus \"has not pointed to\n\nsomeone promoted in her stead that had, for example, a comparable\n\nhistory of workplace recalcitrance\").\n\n The primary evidence Luceus offers to counter the\n\ndefendants' stated justification is the data she offers to support\n\nher disparate impact claim. But \"the central focus\" of a disparate\n\ntreatment claim is \"'less whether a pattern of discrimination\n\nexisted and more how a particular individual was treated, and\n\nwhy.'\" Ray, 799 F.3d at 116 (quoting LeBlanc, 6 F.3d at 848).\n\nFor that reason, \"'statistical evidence of a company's general\n\nhiring patterns, although relevant, carries less probative\n\nweight'\" in a disparate treatment claim, \"and 'in and of itself[]\n\nrarely suffices to rebut an employer's legitimate,\n\nnondiscriminatory rationale for its decision.'\" Id. (quoting\n\nLeBlanc, 6 F.3d at 848). Nor is there any basis in the record to\n\ntreat this case as exceptional, not when Luceus has failed to deny\n\nmost of the charges of workplace misbehavior and has failed to\n\nsupport the disparate impact claim itself. Summary judgment to\n\nthe defendants on this claim was soundly granted.\n\n II\n\n Before us, Luceus also raises a variety of claims based\n\non Rhode Island law. She says that the Department has violated\n\nthe State’s equal opportunity laws, and that three-day-rule\n\n\n - 9 -\n\fassignments likewise violate State law. See Appellant Br. 31-34,\n\n41-51.\n\n Luceus's notice of appeal, however, specified that she\n\nwas appealing only the District Court's judgment with respect to\n\nthe Title VII disparate impact and disparate treatment claims.\n\nThat limitation is fatal to the issues she now wishes to raise\n\nunder Rhode Island law. The general rule is that when \"an\n\nappellant . . . chooses to designate specific determinations in\n\n[her] notice of appeal—rather than simply appealing from the entire\n\njudgment—only the specified issues may be raised on appeal.\"\n\nConstructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co. of\n\nPuerto Rico, 467 F.3d 38, 43 (1st Cir. 2006) (quoting United States\n\nv. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.\n\n1999)). Luceus identifies no reason for departing from that rule\n\nhere.\n\n III\n\n We affirm the District Court's grant of summary judgment\n\nto the defendants on Luceus's claims of disparate impact and\n\ndisparate treatment under Title VII.\n\n\n\n\n - 10 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Erika D. LUCEUS, Plaintiff, Appellant, v. State of RHODE ISLAND; Rhode Island Department of Labor and Training, Defendants, Appellees, Robert Langlais ; Kathy Catanzaro; Rose Lemoine; Jessica Johnson; Jason Bliss Wohlers, Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\nNo. 18-1377\\n\\n ERIKA D. LUCEUS,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n STATE OF RHODE ISLAND; RHODE ISLAND DEPARTMENT OF\\n LABOR AND TRAINING,\\n\\n Defendants, Appellees,\\n\\n ROBERT LANGLAIS; KATHY CATANZARO; ROSE LEMOINE;\\n JESSICA JOHNSON; JASON BLISS WOHLERS,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF RHODE ISLAND\\n\\n [Hon. William E. Smith, U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Circuit Judge,\\n Souter, Associate Justice,\\n and Lipez, Circuit Judge.\\n\\n\\n Casby Harrison, III for appellant.\\n Katherine Connolly Sadeck, Special Assistant Attorney\\nGeneral, with whom Michael W. Field, Assistant Attorney General,\\nwas on brief, for appellees.\\n\\n\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f May 8, 2019\\n\\n\\n\\t\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. Erika Luceus, an employee of\\n\\nthe call center of the Rhode Island Department of Labor and\\n\\nTraining, sued the Department and the State of Rhode Island for\\n\\ndiscrimination in violation of Title VII of the Civil Rights Act\\n\\nof 1964. See 42 U.S.C. § 2000e-2. Luceus claimed that the\\n\\nDepartment's promotion practices have a disparate impact on\\n\\nminority employees, and that the Department has declined to promote\\n\\nher because she is black. The District Court granted summary\\n\\njudgment to the defendants, from which Luceus appeals. We affirm.\\n\\n I\\n\\n Summary judgment is warranted if \\\"there is no genuine\\n\\ndispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.\\\" Fed. R. Civ. P. 56(a). We review\\n\\nthe District Court's grant of summary judgment de novo. Jones v.\\n\\nCity of Boston, 752 F.3d 38, 46 (1st Cir. 2014).\\n\\n A\\n\\n We begin with Luceus's claim of disparate impact. Title\\n\\nVII bars the use of facially neutral \\\"'employment practices that\\n\\ncause[] a disparate impact on the basis of race' unless those\\n\\npractices are justified by business necessity.\\\" Id. (quoting 42\\n\\nU.S.C. § 2000e-2(k)). Luceus alleges that the Department's use of\\n\\n\\\"three-day-rule assignments\\\" as a first step leading to promotion\\n\\nof lower-level employees at the call center has a disparate impact\\n\\non minority employees. A three-day-rule assignment is a temporary\\n\\n\\n - 3 -\\n\\fappointment made by the Department to fill a vacant position.1 The\\n\\nDepartment, however, sometimes makes such appointments permanent.\\n\\nLuceus alleges that three-day-rule assignments are awarded more\\n\\noften to white employees than minority employees, and that white\\n\\nemployees thus are more likely to receive permanent promotions.\\n\\nThe record shows that between 2009 and September 2014 (when she\\n\\nfirst complained to the Department's human resources office), only\\n\\none minority employee received a three-day-rule assignment, as\\n\\ncompared with seven white employees. Luceus also provides\\n\\naffidavits from eight coworkers who attest that minority employees\\n\\nare less likely to receive three-day-rule assignments.\\n\\n This evidence, however, is not enough by itself to make\\n\\na prima facie showing of disparate impact. Except in unusual cases\\n\\nof overwhelming evidence, intuition is not to be trusted, and in\\n\\norder to reach the required prima facie threshold a plaintiff\\n\\nordinarily must demonstrate that there is \\\"a significant\\n\\nstatistical disparity\\\" between the employment outcomes for white\\n\\nand non-white employees. Ricci v. DeStefano, 557 U.S. 557, 587\\n\\n(2009). To be sure, \\\"the absence of such analyses, by itself,\\n\\ndoes not automatically doom the plaintiff's efforts.\\\" EEOC v.\\n\\n\\n 1 The term \\\"three-day-rule assignment\\\" derives from a\\nprovision in the relevant State collective-bargaining agreement\\nthat requires a union employee to be paid the amount associated\\nwith a temporarily assigned position if the employee stays in the\\nposition for at least three days. Luceus v. Rhode Island, No. 15-\\ncv-489, 2018 WL 1626263, at *1 (D.R.I. Mar. 30, 2018).\\n\\n\\n - 4 -\\n\\fSteamship Clerks Union, Local 1066, 48 F.3d 594, 606 (1st Cir.\\n\\n1995). Statistical analysis may not be necessary in a case with\\n\\na \\\"singularly compelling factual context,\\\" in which \\\"the logical\\n\\nforce of the conclusion that the numbers suggest\\\" is obvious. Id.\\n\\nat 604-605. But the data provided by Luceus do not bespeak such\\n\\nan exceptional case. This is the usual case, in which evidence of\\n\\na statistical character is needed to show that any disparities are\\n\\n\\\"unlikely to have occurred by chance.\\\" Fudge v. City of Providence\\n\\nFire Dep't, 766 F.2d 650, 658 (1st Cir. 1985)\\n\\n Here, Luceus has failed to demonstrate \\\"a significant\\n\\nstatistical disparity\\\" on the basis of race. Ricci, 557 U.S. at\\n\\n587. She has not presented any expert testimony or statistical\\n\\ncomputations demonstrating that the alleged disparities in three-\\n\\nday-rule assignments did not \\\"occur[] by chance.\\\" Fudge, 766 F.2d\\n\\nat 658. Indeed, she has not even presented reliable data on which\\n\\na statistical conclusion would rest, because she has not\\n\\nestablished the racial composition of the pools of employees\\n\\neligible for three-day-rule assignments in the instances she\\n\\ncites. Hence, the District Court explained that the record does\\n\\nnot indicate \\\"the number of management-ready minority and white\\n\\nunion members\\\" at the call center where Luceus works. Luceus v.\\n\\nRhode Island, No. 15-cv-489, 2018 WL 1626263, at *7 (D.R.I. Mar.\\n\\n30, 2018). This \\\"fail[ure] to provide important information\\n\\nregarding the pool of applicants\\\" is a critical \\\"flaw[] in the\\n\\n\\n - 5 -\\n\\fstatistical evidence.\\\" See LeBlanc v. Great Am. Ins. Co., 6 F.3d\\n\\n836, 848 (1st Cir. 1993).\\n\\n Although this deficiency alone would doom the disparate\\n\\nimpact claim, the defendants offered evidence that the racial\\n\\ndisparities alleged by Luceus were not statistically significant.\\n\\nUsing the data she provided, they presented expert analysis\\n\\ndemonstrating that there was \\\"no statistically significant\\n\\nevidence of a disparate impact\\\" stemming from the three-day-rule\\n\\nassignments that were the subject of Luceus's complaint. Affidavit\\n\\nof Dr. Craig Lawson Moore ¶¶ 47-49. Luceus offers no comparable\\n\\nrebuttal of this analysis.\\n\\n In sum, based on the record, we conclude that this is\\n\\nnot a case in which Luceus can show a disparate impact in the\\n\\nabsence of statistical and statistically significant evidence.\\n\\nCf. Steamship Clerks, 48 F.3d at 606. Because she has failed to\\n\\nprovide such evidence, the District Court correctly granted\\n\\nsummary judgment to the defendants on her claim of disparate\\n\\nimpact.\\n\\n B\\n\\n Luceus also raises a claim of disparate treatment in\\n\\nviolation of the Title VII bar against employers \\\"treat[ing] some\\n\\npeople less favorably than others because of their race.\\\" Int’l\\n\\nBhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977);\\n\\nsee 42 U.S.C. § 2000e-2(a). Luceus argues that the Department's\\n\\n\\n - 6 -\\n\\fdecision not to promote her was motivated by discriminatory racial\\n\\nanimus.\\n\\n Because Luceus has not provided direct proof of\\n\\ndiscriminatory animus, the burden-shifting sequence set forth in\\n\\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973),\\n\\napplies. At the outset, Luceus must establish a prima facie case\\n\\nby showing that (1) she is \\\"a member of a protected class\\\"; (2) she\\n\\nis \\\"qualified\\\" for the job she seeks; (3) she has \\\"suffer[ed] an\\n\\nadverse employment action at the hands of her employer\\\"; and (4)\\n\\nthere is \\\"some evidence of a causal connection between her\\n\\nmembership in a protected class and the adverse employment action.\\\"\\n\\nBhatti v. Trustees of Boston U., 659 F.3d 64, 70 (1st Cir. 2011).\\n\\nOnce she has established a prima facie case, the burden of\\n\\nproduction shifts to the defendants, who \\\"must establish a\\n\\nlegitimate, nondiscriminatory justification for the adverse\\n\\nemployment action.\\\" Ray v. Ropes & Gray LLP, 799 F.3d 99, 113\\n\\n(1st Cir. 2015). If the defendants meet their burden on that\\n\\nissue, they are entitled to summary judgment unless Luceus\\n\\n\\\"raise[s] a genuine issue of material fact that 'the reasons\\n\\noffered by [the defendants] were a pretext for discrimination.'\\\"\\n\\nId. (quoting Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st\\n\\nCir. 2012)).\\n\\n Like the District Court, however, \\\"[w]e may 'bypass the\\n\\nprima facie case issue.'\\\" Cham, 685 F.3d at 95 (quoting Freadman\\n\\n\\n - 7 -\\n\\fv. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007));\\n\\nsee Luceus, 2018 WL 1626263, at *7. Assuming without deciding\\n\\nthat Luceus has established a prima facie case of disparate\\n\\ntreatment, it is nonetheless clear that she \\\"'has not mustered\\n\\nenough evidence for a reasonable jury to conclude that [the\\n\\ndefendants'] stated reason'\\\" for failing to promote her \\\"was\\n\\npretextual.\\\" Cham, 685 F.3d at 95-96 (quoting Freadman, 484 F.3d\\n\\nat 100).\\n\\n The Department's stated justification for declining to\\n\\npromote Luceus was her disruptive conduct in the workplace: it\\n\\npresented evidence that she was involved in an altercation with a\\n\\ncoworker in which the two had to be physically separated, and that\\n\\nshe had \\\"a history of returning late from work breaks, refusing to\\n\\ncollaborate with her coworkers, and posting signs in her cubicle\\n\\nto provoke management.\\\" Luceus, 2018 WL 1626263, at *7. Luceus\\n\\ndoes not offer enough evidence to rebut that legitimate,\\n\\nnondiscriminatory justification. She does not dispute most of the\\n\\nDepartment's allegations of disruptive conduct and, indeed,\\n\\nexplicitly acknowledges the truth of several of them. Defendants'\\n\\nStatement of Undisputed Facts ¶¶ 184-194, 202-218. She also fails\\n\\nto identify other, white employees \\\"similarly situated\\\" to her \\\"in\\n\\nall relevant respects\\\" who were \\\"treated differently by the\\n\\nemployer,\\\" as might permit a jury to find that the employer's\\n\\nreason was pretextual. Ray, 799 F.3d at 114 (quoting Kosereis v.\\n\\n\\n - 8 -\\n\\fRhode Island, 331 F.3d 207, 214 (1st Cir. 2003)); see Luceus, 2018\\n\\nWL 1626263, at *8 (explaining that Luceus \\\"has not pointed to\\n\\nsomeone promoted in her stead that had, for example, a comparable\\n\\nhistory of workplace recalcitrance\\\").\\n\\n The primary evidence Luceus offers to counter the\\n\\ndefendants' stated justification is the data she offers to support\\n\\nher disparate impact claim. But \\\"the central focus\\\" of a disparate\\n\\ntreatment claim is \\\"'less whether a pattern of discrimination\\n\\nexisted and more how a particular individual was treated, and\\n\\nwhy.'\\\" Ray, 799 F.3d at 116 (quoting LeBlanc, 6 F.3d at 848).\\n\\nFor that reason, \\\"'statistical evidence of a company's general\\n\\nhiring patterns, although relevant, carries less probative\\n\\nweight'\\\" in a disparate treatment claim, \\\"and 'in and of itself[]\\n\\nrarely suffices to rebut an employer's legitimate,\\n\\nnondiscriminatory rationale for its decision.'\\\" Id. (quoting\\n\\nLeBlanc, 6 F.3d at 848). Nor is there any basis in the record to\\n\\ntreat this case as exceptional, not when Luceus has failed to deny\\n\\nmost of the charges of workplace misbehavior and has failed to\\n\\nsupport the disparate impact claim itself. Summary judgment to\\n\\nthe defendants on this claim was soundly granted.\\n\\n II\\n\\n Before us, Luceus also raises a variety of claims based\\n\\non Rhode Island law. She says that the Department has violated\\n\\nthe State’s equal opportunity laws, and that three-day-rule\\n\\n\\n - 9 -\\n\\fassignments likewise violate State law. See Appellant Br. 31-34,\\n\\n41-51.\\n\\n Luceus's notice of appeal, however, specified that she\\n\\nwas appealing only the District Court's judgment with respect to\\n\\nthe Title VII disparate impact and disparate treatment claims.\\n\\nThat limitation is fatal to the issues she now wishes to raise\\n\\nunder Rhode Island law. The general rule is that when \\\"an\\n\\nappellant . . . chooses to designate specific determinations in\\n\\n[her] notice of appeal—rather than simply appealing from the entire\\n\\njudgment—only the specified issues may be raised on appeal.\\\"\\n\\nConstructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co. of\\n\\nPuerto Rico, 467 F.3d 38, 43 (1st Cir. 2006) (quoting United States\\n\\nv. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.\\n\\n1999)). Luceus identifies no reason for departing from that rule\\n\\nhere.\\n\\n III\\n\\n We affirm the District Court's grant of summary judgment\\n\\nto the defendants on Luceus's claims of disparate impact and\\n\\ndisparate treatment under Title VII.\\n\\n\\n\\n\\n - 10 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1964,"cells":{"id":{"kind":"number","value":4619042,"string":"4,619,042"},"name":{"kind":"string","value":"Miguel ROMAN, Petitioner, Appellant, v. Lisa A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee."},"name_abbreviation":{"kind":"string","value":"Roman v. Mitchell"},"decision_date":{"kind":"string","value":"2019-05-13"},"docket_number":{"kind":"string","value":"18-1979P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Thompson, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"KAYATTA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1979\\n\\n MIGUEL ROMAN,\\n\\n Petitioner, Appellant,\\n\\n v.\\n\\n LISA A. MITCHELL, Superintendent,\\n Old Colony Correctional Center,\\n\\n Respondent, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Allison D. Burroughs, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Donald A. Harwood and Donald A. Harwood, Esq. PC on brief for\\nappellant.\\n Susanne Reardon, Assistant Attorney General of Massachusetts,\\nand Maura Healey, Attorney General of Massachusetts, on brief for\\nappellee.\\n\\n\\n May 13, 2019\\n\\f KAYATTA, Circuit Judge. Miguel Roman appeals from the\\n\\ndistrict court's dismissal of his habeas petition under 28 U.S.C.\\n\\n§ 2254 contesting his state-court conviction and ongoing detention\\n\\nfor first-degree murder. The district court determined that the\\n\\nMassachusetts Supreme Judicial Court (SJC) acted reasonably in\\n\\nconcluding that the evidence sufficiently supported the\\n\\nconviction. We affirm for the same reason.\\n\\n I.\\n\\n A.\\n\\n Because this appeal challenges the sufficiency of the\\n\\nevidence, we recite the facts \\\"in the light most compatible with\\n\\nthe jury's verdict, consistent with record support.\\\" Leftwich v.\\n\\nMaloney, 532 F.3d 20, 21 (1st Cir. 2008) (citing Jackson v.\\n\\nVirginia, 443 U.S. 307, 319 (1979)). We summarize here only those\\n\\ncentral facts sufficient to explain our conclusion. A fuller\\n\\nrecitation of these facts are set forth in the SJC's opinion. See\\n\\nCommonwealth v. Roman, 18 N.E.3d 1069, 1071 (Mass. 2014).\\n\\n The events underlying Roman's conviction took place in\\n\\nthe early hours of January 29, 2010 in Holyoke, Massachusetts. At\\n\\naround 2:00 a.m., five men left a nightclub in a Nissan Altima.\\n\\nLuis Soto, whose girlfriend owned the car, drove, Angel Fernandez\\n\\nwas in the front passenger seat, his brother Felipe sat behind him\\n\\nin the right rear seat, Roman was behind the driver's seat, and\\n\\nShawn Tiago sat in the middle of the backseat between Roman and\\n\\n\\n - 2 -\\n\\fFelipe. Soto drove down High Street until Roman told him to turn\\n\\nright onto Essex Street. Soto testified that, after he turned the\\n\\ncar onto Essex Street, he \\\"heard a detonation.\\\" He could not tell\\n\\nwhether there had been more than one shot because his ears were\\n\\nringing.\\n\\n Soto immediately stopped the car and shifted it into\\n\\npark. Felipe and then Angel got out of the vehicle and started\\n\\nrunning toward High Street. Soto testified that he turned around\\n\\nand saw Roman holding a gun in his right hand, close to Tiago's\\n\\nhead. Tiago slouched forward toward the front of the car. After\\n\\ninitially hesitating, Soto was the third person to exit the Altima.\\n\\n Roman then got out of the vehicle, walked around the\\n\\nback of the car, opened the rear passenger's side door, and leaned\\n\\ninside. As Soto ran toward High Street, he heard another shot.\\n\\nThe car proceeded to Newton Street, where Tiago's body was later\\n\\nfound in the road with two bullet holes in the left rear side of\\n\\nhis head and one in his right temple.\\n\\n Another government witness, Barbara St. Amand, who lived\\n\\non Newton Street, testified that she looked out her window after\\n\\nhearing one or two gunshots and tires screeching outside. She saw\\n\\na man wearing a black hooded jacket, the same type Felipe was\\n\\nwearing that night, pull something out of the rear passenger side\\n\\nof the car and re-enter the backseat on the driver's side.\\n\\n\\n\\n\\n - 3 -\\n\\f Meanwhile, Felipe, Angel, and Soto arrived at Sam's\\n\\nFood, a nearby store on High Street. Soto and Angel went inside\\n\\nthe store, and Felipe stayed outside, close to the door. Roman\\n\\ncalled Angel's cellphone at 2:04 a.m., and the call connected for\\n\\nforty-four seconds. Roman, driving the Altima, arrived at Sam's\\n\\nwithin two minutes after the car first stopped on Essex Street.\\n\\nRoman left the car outside the store and ran away.\\n\\n B.\\n\\n In February 2010, a Hampden County grand jury indicted\\n\\nRoman for first-degree murder and possession of a class B substance\\n\\n(cocaine). The case was severed from those of co-defendants Soto\\n\\nand Angel, who agreed to testify against Roman pursuant to\\n\\ncooperation agreements.\\n\\n After trial, the jury found Roman guilty on both charges.\\n\\nThe Hampton County Superior Court sentenced him to life\\n\\nimprisonment for the murder conviction. Roman timely appealed to\\n\\nthe SJC, arguing, inter alia, that the trial court erred by denying\\n\\nhis motion for a required finding of not guilty at the close of\\n\\nthe Commonwealth's case. The SJC affirmed his convictions and\\n\\nfound the evidence constitutionally sufficient to establish that\\n\\nhe shot Tiago.\\n\\n In January 2016, Roman timely filed a petition for a\\n\\nwrit of habeas corpus in the U.S. District Court for the District\\n\\nof Massachusetts, raising a single claim challenging the\\n\\n\\n - 4 -\\n\\fsufficiency of the evidence grounding his murder conviction. The\\n\\ndistrict court denied his petition but issued a Certificate of\\n\\nAppealability. We have jurisdiction under 28 U.S.C. § 2253(a).\\n\\nWe review the district court's denial of Roman's habeas petition\\n\\nde novo. See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).\\n\\n II.\\n\\n In this case, the petition assails only the sufficiency\\n\\nof the evidence as governed by Jackson v. Virginia, 443 U.S. 307\\n\\n(1979).1 To set aside the verdict under the Due Process Clause of\\n\\nthe U.S. Constitution for insufficient evidence, Roman needed to\\n\\nconvince the state courts that, \\\"after viewing the evidence in the\\n\\nlight most favorable to the prosecution, [no] rational trier of\\n\\nfact could have found the essential elements of the crime beyond\\n\\na reasonable doubt.\\\" Id. at 319. \\\"This standard 'exhibits great\\n\\nrespect for the jury's verdict,'\\\" Winfield v. O'Brien, 775 F.3d 1,\\n\\n7 (1st Cir. 2014) (quoting Magraw v. Roden, 743 F.3d 1, 4 (1st\\n\\nCir. 2014)), but it does not insulate verdicts based on\\n\\n\\\"evidentiary interpretations and illations that are unreasonable,\\n\\n\\n\\n 1\\n Under Commonwealth v. Latimore, 393 N.E.2d 370, 375 (Mass.\\n1979), Massachusetts state courts apply a sufficiency standard\\nthat is \\\"functionally identical\\\" to the standard promulgated by\\nthe U.S. Supreme Court in Jackson, 443 U.S. at 319. Logan v. Gelb,\\n790 F.3d 65, 71 (1st Cir. 2015). Thus, \\\"we can securely reason\\nthat in scouring the record for Latimore error and finding none\\nthe SJC effectively answered the federal constitutional question.\\\"\\nHousen v. Gelb, 744 F.3d 221, 225 (1st Cir. 2014) (quoting\\nLeftwich, 532 F.3d at 24).\\n\\n\\n - 5 -\\n\\finsupportable or overly speculative,\\\" id. (quoting United States\\n\\nv. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). Still, the Jackson\\n\\nstandard is \\\"rarely met where there is plausible evidence to\\n\\nsupport a verdict.\\\" Tash v. Roden, 626 F.3d 15, 20 (1st Cir.\\n\\n2010).\\n\\n Having lost in state court at trial and on appeal, Roman\\n\\ndoes not get a full redo in federal court. When a state court has\\n\\ndecided a legal claim on the merits, a habeas petitioner must show\\n\\nthat the ruling was \\\"contrary to, or involv[ed] an unreasonable\\n\\napplication of, clearly established Federal law, as determined by\\n\\nthe Supreme Court of the United States.\\\" Tash, 626 F.3d at 18\\n\\n(quoting 28 U.S.C. § 2254(d)(1)). In short, in a case such as\\n\\nthis, we ask not whether the evidence was sufficient; rather, we\\n\\nask whether the SJC's sufficiency finding was \\\"objectively\\n\\nunreasonable.\\\" See Hurtado v. Tucker, 245 F.3d 7, 18 (1st Cir.\\n\\n2001) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)); see\\n\\nalso id. at 16 (\\\"Habeas review involves the layering of two\\n\\nstandards. The habeas question of whether the state court decision\\n\\nis objectively unreasonable is layered on top of the underlying\\n\\nstandard governing the constitutional right asserted.\\\"). In this\\n\\ncontext, \\\"unreasonable\\\" means that the decision \\\"evinces some\\n\\nincrement of incorrectness beyond mere error.\\\" Leftwich, 532 F.3d\\n\\nat 23 (citing McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)\\n\\n(en banc)).\\n\\n\\n - 6 -\\n\\f Here, Roman argues that the SJC's rejection of his\\n\\nsufficiency claim \\\"constituted an unreasonable application of the\\n\\nlaw to the facts [and] . . . was arbitrary and devoid of factual\\n\\nsupport.\\\" He contends that Soto's and Felipe's testimony at trial\\n\\nwas \\\"uncorroborated,\\\" \\\"perjurious,\\\" and \\\"illogical.\\\" Roman's\\n\\nconsistent defense has been that Felipe was the shooter because\\n\\nTiago sustained a fatal gunshot wound to his right temple, and\\n\\nFelipe was seated to Tiago's right. And, he asserts, Felipe and\\n\\nSoto both testified to hearing only one shot fired in the car. He\\n\\nalso points to the testimony of St. Amand, a disinterested witness,\\n\\nstating that she saw a man dressed like Felipe pulling something\\n\\n(presumably the victim's body) out of the rear of the Altima and\\n\\nsuggesting that two men were there with the body, as opposed to\\n\\nthe government's theory that Roman alone dumped the body on Newton\\n\\nStreet.\\n\\n But, as the SJC found, other trial testimony and video\\n\\nrecordings from local security cameras significantly undercut\\n\\nRoman's alternate theory. Soto and Felipe testified that Felipe\\n\\nfled from the rear passenger's side door as soon as he heard the\\n\\nfirst gunshot. Video footage from an Essex Street camera confirmed\\n\\nthat between 2:02:22 a.m. and 2:02:56 a.m., a person from the rear\\n\\npassenger's seat first exited the car, followed by a person from\\n\\nthe front passenger's seat, and then the driver. Roman, 18 N.E.3d\\n\\nat 1073. The last person to leave the car got out from where Roman\\n\\n\\n - 7 -\\n\\fsat, behind the driver's seat. That person walked around to the\\n\\nrear passenger's side, and leaned inside for about thirteen\\n\\nseconds, before getting in the driver's seat and driving away.\\n\\nId. Accordingly, the SJC reasonably determined that the jury could\\n\\nhave found that Felipe, then Angel and Soto, abandoned the car and\\n\\nran toward High Street, while Roman stayed behind and shot Tiago\\n\\nagain, just as Soto testified.\\n\\n Footage from Sam's Food, in turn, showed three men (not\\n\\ntwo) arriving at the store between 2:04:02 a.m. and 2:04:17 a.m.\\n\\nThe recording also showed Angel talking on his cellphone at the\\n\\nsame time the Altima arrived out front. Coupled with telephone\\n\\nrecords showing that Roman called Angel at around the same time as\\n\\nthe car pulled up, the SJC reasonably concluded that the jury could\\n\\nhave found in this evidence further support for the testimony that\\n\\nFelipe was at the store when Roman arrived with the car.\\n\\n The security camera recordings also allowed the SJC to\\n\\ndetermine that only one minute and fifty-six seconds passed from\\n\\nthe time the Altima stopped on Essex Street until it arrived at\\n\\nSam's Food store. The SJC therefore reasoned that \\\"[t]here would\\n\\nonly have been enough time for the convergence of Soto, Angel, and\\n\\nFelipe, and the Altima at Sam's . . . if events had occurred as\\n\\nSoto and Felipe testified.\\\" Roman, 18 N.E.3d at 1074. That is,\\n\\nif the three men who arrived on foot ran directly to Sam's from\\n\\nEssex Street.\\n\\n\\n - 8 -\\n\\f It is undoubtedly \\\"within the province of the jury\\\" to\\n\\nevaluate witness credibility. Foxworth, 570 F.3d at 427. A\\n\\nrational jury was certainly entitled to discredit St. Amand's\\n\\ntestimony in light of contravening evidence. See Housen, 744 F.3d\\n\\nat 226 (\\\"On review for evidentiary sufficiency, . . . 'a habeas\\n\\ncourt may not freely reweigh competing inferences but must accept\\n\\nthose reasonable inferences that are most compatible with the\\n\\njury's verdict.'\\\" (quoting Magraw, 743 F.3d at 7)); Hurtado, 245\\n\\nF.3d at 19 (\\\"[W]here the argument over the correctness of the state\\n\\ncourt's ultimate conclusion . . . call[s] for a choice between\\n\\ncredible (although mutually opposed) views, the habeas inquiry on\\n\\nobjective unreasonableness ends.\\\").\\n\\n Roman's argument that the fatal gunshot wound to Tiago's\\n\\nright temple \\\"conclusively\\\" proves that Felipe was the shooter\\n\\nlikewise falls flat. The medical examiner testified that Tiago\\n\\nsustained three gunshot wounds to the head: two to the left rear\\n\\nside almost on top of one another and a third on the right temple.\\n\\nAnd at least one of the left-side wounds was also potentially\\n\\nfatal. Roman, 18 N.E.3d at 1075. In any event, the evidence\\n\\ncredibly placed Roman on both the left and right sides of the\\n\\nvictim as he moved out of and around the car.\\n\\n Felipe's and Soto's testimony regarding how many\\n\\ngunshots they heard in the car is also not as conclusive as Roman\\n\\nwould have us believe. Although Soto initially testified that he\\n\\n\\n - 9 -\\n\\fheard one detonation, he also said that the sound was \\\"very\\\" loud\\n\\nand that he could not tell at first whether it came from inside or\\n\\noutside the vehicle. Soto clarified, in response to further\\n\\nquestioning, that he could not make out \\\"whether there was one\\n\\nbang or more than one bang\\\" because his ears were ringing. Felipe\\n\\ntestified only that he \\\"heard a bang\\\" and that he knew it was \\\"a\\n\\ngunshot.\\\" These statements are entirely consistent with the\\n\\ntestimony of the government's ballistics expert, who opined that\\n\\nthe type of gun likely used to kill the victim, a Jennings Bryco\\n\\nmodel J22 semiautomatic pistol, \\\"is very loud and capable of firing\\n\\nshots in rapid succession.\\\" Roman, 18 N.E.3d at 1075. Soto and\\n\\nFelipe also testified to hearing another gunshot as they ran\\n\\ntowards High Street. A shell casing recovered from the vicinity\\n\\nof where the Altima stopped on Essex Street further corroborates\\n\\nthis testimony and the SJC's conclusion that Roman fired a third\\n\\nshot into Tiago's right temple area as he stood outside the open\\n\\nright rear door of the car.\\n\\n Finally, Roman also emphasizes that, while he had no\\n\\nmotive to kill Tiago, the Gonzalez brothers had been involved in\\n\\nan altercation with Tiago the week before over an unpaid debt,\\n\\nafter which Tiago threatened to kill Angel. But, as the district\\n\\ncourt explained, because motive, while probative, is not an element\\n\\nof the crime of deliberately premeditated murder, the absence of\\n\\nevidence of motive is insufficient to undermine the SJC's decision\\n\\n\\n - 10 -\\n\\funder Jackson. See Commonwealth v. Sylvia, 921 N.E.2d 968, 975–\\n\\n76 (Mass. 2010) (noting that the government is not required to\\n\\nprove motive to prove first-degree murder on a theory of\\n\\npremeditation).\\n\\n Viewing the evidence as a whole in the light most\\n\\nfavorable to the verdict, we cannot say that the SJC unreasonably\\n\\napplied Jackson or reached an unreasonable determination of the\\n\\nfacts. The state court \\\"did not ignore material evidence or a key\\n\\nargument made by the defendant\\\" and \\\"[i]ts articulated reasons\\n\\nwent to the conclusions it reached.\\\" Hurtado, 245 F.3d at 18. It\\n\\nreasonably concluded that a rational jury could have found beyond\\n\\na reasonable doubt \\\"that [Roman] fired two shots at close range\\n\\ninto the left temple of the victim, then went around to the other\\n\\nside of the car, opened the rear passenger's side door, and fired\\n\\na third shot into the victim's right temple.\\\"\\n\\n III.\\n\\n For the foregoing reasons, we affirm the district\\n\\ncourt's denial of habeas relief.\\n\\n\\n\\n\\n - 11 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4396295/\", \"author_raw\": \"KAYATTA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4619042/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Miguel ROMAN, Petitioner, Appellant, v. Lisa A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1979\n\n MIGUEL ROMAN,\n\n Petitioner, Appellant,\n\n v.\n\n LISA A. MITCHELL, Superintendent,\n Old Colony Correctional Center,\n\n Respondent, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Allison D. Burroughs, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Donald A. Harwood and Donald A. Harwood, Esq. PC on brief for\nappellant.\n Susanne Reardon, Assistant Attorney General of Massachusetts,\nand Maura Healey, Attorney General of Massachusetts, on brief for\nappellee.\n\n\n May 13, 2019\n\f KAYATTA, Circuit Judge. Miguel Roman appeals from the\n\ndistrict court's dismissal of his habeas petition under 28 U.S.C.\n\n§ 2254 contesting his state-court conviction and ongoing detention\n\nfor first-degree murder. The district court determined that the\n\nMassachusetts Supreme Judicial Court (SJC) acted reasonably in\n\nconcluding that the evidence sufficiently supported the\n\nconviction. We affirm for the same reason.\n\n I.\n\n A.\n\n Because this appeal challenges the sufficiency of the\n\nevidence, we recite the facts \"in the light most compatible with\n\nthe jury's verdict, consistent with record support.\" Leftwich v.\n\nMaloney, 532 F.3d 20, 21 (1st Cir. 2008) (citing Jackson v.\n\nVirginia, 443 U.S. 307, 319 (1979)). We summarize here only those\n\ncentral facts sufficient to explain our conclusion. A fuller\n\nrecitation of these facts are set forth in the SJC's opinion. See\n\nCommonwealth v. Roman, 18 N.E.3d 1069, 1071 (Mass. 2014).\n\n The events underlying Roman's conviction took place in\n\nthe early hours of January 29, 2010 in Holyoke, Massachusetts. At\n\naround 2:00 a.m., five men left a nightclub in a Nissan Altima.\n\nLuis Soto, whose girlfriend owned the car, drove, Angel Fernandez\n\nwas in the front passenger seat, his brother Felipe sat behind him\n\nin the right rear seat, Roman was behind the driver's seat, and\n\nShawn Tiago sat in the middle of the backseat between Roman and\n\n\n - 2 -\n\fFelipe. Soto drove down High Street until Roman told him to turn\n\nright onto Essex Street. Soto testified that, after he turned the\n\ncar onto Essex Street, he \"heard a detonation.\" He could not tell\n\nwhether there had been more than one shot because his ears were\n\nringing.\n\n Soto immediately stopped the car and shifted it into\n\npark. Felipe and then Angel got out of the vehicle and started\n\nrunning toward High Street. Soto testified that he turned around\n\nand saw Roman holding a gun in his right hand, close to Tiago's\n\nhead. Tiago slouched forward toward the front of the car. After\n\ninitially hesitating, Soto was the third person to exit the Altima.\n\n Roman then got out of the vehicle, walked around the\n\nback of the car, opened the rear passenger's side door, and leaned\n\ninside. As Soto ran toward High Street, he heard another shot.\n\nThe car proceeded to Newton Street, where Tiago's body was later\n\nfound in the road with two bullet holes in the left rear side of\n\nhis head and one in his right temple.\n\n Another government witness, Barbara St. Amand, who lived\n\non Newton Street, testified that she looked out her window after\n\nhearing one or two gunshots and tires screeching outside. She saw\n\na man wearing a black hooded jacket, the same type Felipe was\n\nwearing that night, pull something out of the rear passenger side\n\nof the car and re-enter the backseat on the driver's side.\n\n\n\n\n - 3 -\n\f Meanwhile, Felipe, Angel, and Soto arrived at Sam's\n\nFood, a nearby store on High Street. Soto and Angel went inside\n\nthe store, and Felipe stayed outside, close to the door. Roman\n\ncalled Angel's cellphone at 2:04 a.m., and the call connected for\n\nforty-four seconds. Roman, driving the Altima, arrived at Sam's\n\nwithin two minutes after the car first stopped on Essex Street.\n\nRoman left the car outside the store and ran away.\n\n B.\n\n In February 2010, a Hampden County grand jury indicted\n\nRoman for first-degree murder and possession of a class B substance\n\n(cocaine). The case was severed from those of co-defendants Soto\n\nand Angel, who agreed to testify against Roman pursuant to\n\ncooperation agreements.\n\n After trial, the jury found Roman guilty on both charges.\n\nThe Hampton County Superior Court sentenced him to life\n\nimprisonment for the murder conviction. Roman timely appealed to\n\nthe SJC, arguing, inter alia, that the trial court erred by denying\n\nhis motion for a required finding of not guilty at the close of\n\nthe Commonwealth's case. The SJC affirmed his convictions and\n\nfound the evidence constitutionally sufficient to establish that\n\nhe shot Tiago.\n\n In January 2016, Roman timely filed a petition for a\n\nwrit of habeas corpus in the U.S. District Court for the District\n\nof Massachusetts, raising a single claim challenging the\n\n\n - 4 -\n\fsufficiency of the evidence grounding his murder conviction. The\n\ndistrict court denied his petition but issued a Certificate of\n\nAppealability. We have jurisdiction under 28 U.S.C. § 2253(a).\n\nWe review the district court's denial of Roman's habeas petition\n\nde novo. See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).\n\n II.\n\n In this case, the petition assails only the sufficiency\n\nof the evidence as governed by Jackson v. Virginia, 443 U.S. 307\n\n(1979).1 To set aside the verdict under the Due Process Clause of\n\nthe U.S. Constitution for insufficient evidence, Roman needed to\n\nconvince the state courts that, \"after viewing the evidence in the\n\nlight most favorable to the prosecution, [no] rational trier of\n\nfact could have found the essential elements of the crime beyond\n\na reasonable doubt.\" Id. at 319. \"This standard 'exhibits great\n\nrespect for the jury's verdict,'\" Winfield v. O'Brien, 775 F.3d 1,\n\n7 (1st Cir. 2014) (quoting Magraw v. Roden, 743 F.3d 1, 4 (1st\n\nCir. 2014)), but it does not insulate verdicts based on\n\n\"evidentiary interpretations and illations that are unreasonable,\n\n\n\n 1\n Under Commonwealth v. Latimore, 393 N.E.2d 370, 375 (Mass.\n1979), Massachusetts state courts apply a sufficiency standard\nthat is \"functionally identical\" to the standard promulgated by\nthe U.S. Supreme Court in Jackson, 443 U.S. at 319. Logan v. Gelb,\n790 F.3d 65, 71 (1st Cir. 2015). Thus, \"we can securely reason\nthat in scouring the record for Latimore error and finding none\nthe SJC effectively answered the federal constitutional question.\"\nHousen v. Gelb, 744 F.3d 221, 225 (1st Cir. 2014) (quoting\nLeftwich, 532 F.3d at 24).\n\n\n - 5 -\n\finsupportable or overly speculative,\" id. (quoting United States\n\nv. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). Still, the Jackson\n\nstandard is \"rarely met where there is plausible evidence to\n\nsupport a verdict.\" Tash v. Roden, 626 F.3d 15, 20 (1st Cir.\n\n2010).\n\n Having lost in state court at trial and on appeal, Roman\n\ndoes not get a full redo in federal court. When a state court has\n\ndecided a legal claim on the merits, a habeas petitioner must show\n\nthat the ruling was \"contrary to, or involv[ed] an unreasonable\n\napplication of, clearly established Federal law, as determined by\n\nthe Supreme Court of the United States.\" Tash, 626 F.3d at 18\n\n(quoting 28 U.S.C. § 2254(d)(1)). In short, in a case such as\n\nthis, we ask not whether the evidence was sufficient; rather, we\n\nask whether the SJC's sufficiency finding was \"objectively\n\nunreasonable.\" See Hurtado v. Tucker, 245 F.3d 7, 18 (1st Cir.\n\n2001) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)); see\n\nalso id. at 16 (\"Habeas review involves the layering of two\n\nstandards. The habeas question of whether the state court decision\n\nis objectively unreasonable is layered on top of the underlying\n\nstandard governing the constitutional right asserted.\"). In this\n\ncontext, \"unreasonable\" means that the decision \"evinces some\n\nincrement of incorrectness beyond mere error.\" Leftwich, 532 F.3d\n\nat 23 (citing McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)\n\n(en banc)).\n\n\n - 6 -\n\f Here, Roman argues that the SJC's rejection of his\n\nsufficiency claim \"constituted an unreasonable application of the\n\nlaw to the facts [and] . . . was arbitrary and devoid of factual\n\nsupport.\" He contends that Soto's and Felipe's testimony at trial\n\nwas \"uncorroborated,\" \"perjurious,\" and \"illogical.\" Roman's\n\nconsistent defense has been that Felipe was the shooter because\n\nTiago sustained a fatal gunshot wound to his right temple, and\n\nFelipe was seated to Tiago's right. And, he asserts, Felipe and\n\nSoto both testified to hearing only one shot fired in the car. He\n\nalso points to the testimony of St. Amand, a disinterested witness,\n\nstating that she saw a man dressed like Felipe pulling something\n\n(presumably the victim's body) out of the rear of the Altima and\n\nsuggesting that two men were there with the body, as opposed to\n\nthe government's theory that Roman alone dumped the body on Newton\n\nStreet.\n\n But, as the SJC found, other trial testimony and video\n\nrecordings from local security cameras significantly undercut\n\nRoman's alternate theory. Soto and Felipe testified that Felipe\n\nfled from the rear passenger's side door as soon as he heard the\n\nfirst gunshot. Video footage from an Essex Street camera confirmed\n\nthat between 2:02:22 a.m. and 2:02:56 a.m., a person from the rear\n\npassenger's seat first exited the car, followed by a person from\n\nthe front passenger's seat, and then the driver. Roman, 18 N.E.3d\n\nat 1073. The last person to leave the car got out from where Roman\n\n\n - 7 -\n\fsat, behind the driver's seat. That person walked around to the\n\nrear passenger's side, and leaned inside for about thirteen\n\nseconds, before getting in the driver's seat and driving away.\n\nId. Accordingly, the SJC reasonably determined that the jury could\n\nhave found that Felipe, then Angel and Soto, abandoned the car and\n\nran toward High Street, while Roman stayed behind and shot Tiago\n\nagain, just as Soto testified.\n\n Footage from Sam's Food, in turn, showed three men (not\n\ntwo) arriving at the store between 2:04:02 a.m. and 2:04:17 a.m.\n\nThe recording also showed Angel talking on his cellphone at the\n\nsame time the Altima arrived out front. Coupled with telephone\n\nrecords showing that Roman called Angel at around the same time as\n\nthe car pulled up, the SJC reasonably concluded that the jury could\n\nhave found in this evidence further support for the testimony that\n\nFelipe was at the store when Roman arrived with the car.\n\n The security camera recordings also allowed the SJC to\n\ndetermine that only one minute and fifty-six seconds passed from\n\nthe time the Altima stopped on Essex Street until it arrived at\n\nSam's Food store. The SJC therefore reasoned that \"[t]here would\n\nonly have been enough time for the convergence of Soto, Angel, and\n\nFelipe, and the Altima at Sam's . . . if events had occurred as\n\nSoto and Felipe testified.\" Roman, 18 N.E.3d at 1074. That is,\n\nif the three men who arrived on foot ran directly to Sam's from\n\nEssex Street.\n\n\n - 8 -\n\f It is undoubtedly \"within the province of the jury\" to\n\nevaluate witness credibility. Foxworth, 570 F.3d at 427. A\n\nrational jury was certainly entitled to discredit St. Amand's\n\ntestimony in light of contravening evidence. See Housen, 744 F.3d\n\nat 226 (\"On review for evidentiary sufficiency, . . . 'a habeas\n\ncourt may not freely reweigh competing inferences but must accept\n\nthose reasonable inferences that are most compatible with the\n\njury's verdict.'\" (quoting Magraw, 743 F.3d at 7)); Hurtado, 245\n\nF.3d at 19 (\"[W]here the argument over the correctness of the state\n\ncourt's ultimate conclusion . . . call[s] for a choice between\n\ncredible (although mutually opposed) views, the habeas inquiry on\n\nobjective unreasonableness ends.\").\n\n Roman's argument that the fatal gunshot wound to Tiago's\n\nright temple \"conclusively\" proves that Felipe was the shooter\n\nlikewise falls flat. The medical examiner testified that Tiago\n\nsustained three gunshot wounds to the head: two to the left rear\n\nside almost on top of one another and a third on the right temple.\n\nAnd at least one of the left-side wounds was also potentially\n\nfatal. Roman, 18 N.E.3d at 1075. In any event, the evidence\n\ncredibly placed Roman on both the left and right sides of the\n\nvictim as he moved out of and around the car.\n\n Felipe's and Soto's testimony regarding how many\n\ngunshots they heard in the car is also not as conclusive as Roman\n\nwould have us believe. Although Soto initially testified that he\n\n\n - 9 -\n\fheard one detonation, he also said that the sound was \"very\" loud\n\nand that he could not tell at first whether it came from inside or\n\noutside the vehicle. Soto clarified, in response to further\n\nquestioning, that he could not make out \"whether there was one\n\nbang or more than one bang\" because his ears were ringing. Felipe\n\ntestified only that he \"heard a bang\" and that he knew it was \"a\n\ngunshot.\" These statements are entirely consistent with the\n\ntestimony of the government's ballistics expert, who opined that\n\nthe type of gun likely used to kill the victim, a Jennings Bryco\n\nmodel J22 semiautomatic pistol, \"is very loud and capable of firing\n\nshots in rapid succession.\" Roman, 18 N.E.3d at 1075. Soto and\n\nFelipe also testified to hearing another gunshot as they ran\n\ntowards High Street. A shell casing recovered from the vicinity\n\nof where the Altima stopped on Essex Street further corroborates\n\nthis testimony and the SJC's conclusion that Roman fired a third\n\nshot into Tiago's right temple area as he stood outside the open\n\nright rear door of the car.\n\n Finally, Roman also emphasizes that, while he had no\n\nmotive to kill Tiago, the Gonzalez brothers had been involved in\n\nan altercation with Tiago the week before over an unpaid debt,\n\nafter which Tiago threatened to kill Angel. But, as the district\n\ncourt explained, because motive, while probative, is not an element\n\nof the crime of deliberately premeditated murder, the absence of\n\nevidence of motive is insufficient to undermine the SJC's decision\n\n\n - 10 -\n\funder Jackson. See Commonwealth v. Sylvia, 921 N.E.2d 968, 975–\n\n76 (Mass. 2010) (noting that the government is not required to\n\nprove motive to prove first-degree murder on a theory of\n\npremeditation).\n\n Viewing the evidence as a whole in the light most\n\nfavorable to the verdict, we cannot say that the SJC unreasonably\n\napplied Jackson or reached an unreasonable determination of the\n\nfacts. The state court \"did not ignore material evidence or a key\n\nargument made by the defendant\" and \"[i]ts articulated reasons\n\nwent to the conclusions it reached.\" Hurtado, 245 F.3d at 18. It\n\nreasonably concluded that a rational jury could have found beyond\n\na reasonable doubt \"that [Roman] fired two shots at close range\n\ninto the left temple of the victim, then went around to the other\n\nside of the car, opened the rear passenger's side door, and fired\n\na third shot into the victim's right temple.\"\n\n III.\n\n For the foregoing reasons, we affirm the district\n\ncourt's denial of habeas relief.\n\n\n\n\n - 11 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Miguel ROMAN, Petitioner, Appellant, v. Lisa A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1979\\n\\n MIGUEL ROMAN,\\n\\n Petitioner, Appellant,\\n\\n v.\\n\\n LISA A. MITCHELL, Superintendent,\\n Old Colony Correctional Center,\\n\\n Respondent, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Allison D. Burroughs, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Donald A. Harwood and Donald A. Harwood, Esq. PC on brief for\\nappellant.\\n Susanne Reardon, Assistant Attorney General of Massachusetts,\\nand Maura Healey, Attorney General of Massachusetts, on brief for\\nappellee.\\n\\n\\n May 13, 2019\\n\\f KAYATTA, Circuit Judge. Miguel Roman appeals from the\\n\\ndistrict court's dismissal of his habeas petition under 28 U.S.C.\\n\\n§ 2254 contesting his state-court conviction and ongoing detention\\n\\nfor first-degree murder. The district court determined that the\\n\\nMassachusetts Supreme Judicial Court (SJC) acted reasonably in\\n\\nconcluding that the evidence sufficiently supported the\\n\\nconviction. We affirm for the same reason.\\n\\n I.\\n\\n A.\\n\\n Because this appeal challenges the sufficiency of the\\n\\nevidence, we recite the facts \\\"in the light most compatible with\\n\\nthe jury's verdict, consistent with record support.\\\" Leftwich v.\\n\\nMaloney, 532 F.3d 20, 21 (1st Cir. 2008) (citing Jackson v.\\n\\nVirginia, 443 U.S. 307, 319 (1979)). We summarize here only those\\n\\ncentral facts sufficient to explain our conclusion. A fuller\\n\\nrecitation of these facts are set forth in the SJC's opinion. See\\n\\nCommonwealth v. Roman, 18 N.E.3d 1069, 1071 (Mass. 2014).\\n\\n The events underlying Roman's conviction took place in\\n\\nthe early hours of January 29, 2010 in Holyoke, Massachusetts. At\\n\\naround 2:00 a.m., five men left a nightclub in a Nissan Altima.\\n\\nLuis Soto, whose girlfriend owned the car, drove, Angel Fernandez\\n\\nwas in the front passenger seat, his brother Felipe sat behind him\\n\\nin the right rear seat, Roman was behind the driver's seat, and\\n\\nShawn Tiago sat in the middle of the backseat between Roman and\\n\\n\\n - 2 -\\n\\fFelipe. Soto drove down High Street until Roman told him to turn\\n\\nright onto Essex Street. Soto testified that, after he turned the\\n\\ncar onto Essex Street, he \\\"heard a detonation.\\\" He could not tell\\n\\nwhether there had been more than one shot because his ears were\\n\\nringing.\\n\\n Soto immediately stopped the car and shifted it into\\n\\npark. Felipe and then Angel got out of the vehicle and started\\n\\nrunning toward High Street. Soto testified that he turned around\\n\\nand saw Roman holding a gun in his right hand, close to Tiago's\\n\\nhead. Tiago slouched forward toward the front of the car. After\\n\\ninitially hesitating, Soto was the third person to exit the Altima.\\n\\n Roman then got out of the vehicle, walked around the\\n\\nback of the car, opened the rear passenger's side door, and leaned\\n\\ninside. As Soto ran toward High Street, he heard another shot.\\n\\nThe car proceeded to Newton Street, where Tiago's body was later\\n\\nfound in the road with two bullet holes in the left rear side of\\n\\nhis head and one in his right temple.\\n\\n Another government witness, Barbara St. Amand, who lived\\n\\non Newton Street, testified that she looked out her window after\\n\\nhearing one or two gunshots and tires screeching outside. She saw\\n\\na man wearing a black hooded jacket, the same type Felipe was\\n\\nwearing that night, pull something out of the rear passenger side\\n\\nof the car and re-enter the backseat on the driver's side.\\n\\n\\n\\n\\n - 3 -\\n\\f Meanwhile, Felipe, Angel, and Soto arrived at Sam's\\n\\nFood, a nearby store on High Street. Soto and Angel went inside\\n\\nthe store, and Felipe stayed outside, close to the door. Roman\\n\\ncalled Angel's cellphone at 2:04 a.m., and the call connected for\\n\\nforty-four seconds. Roman, driving the Altima, arrived at Sam's\\n\\nwithin two minutes after the car first stopped on Essex Street.\\n\\nRoman left the car outside the store and ran away.\\n\\n B.\\n\\n In February 2010, a Hampden County grand jury indicted\\n\\nRoman for first-degree murder and possession of a class B substance\\n\\n(cocaine). The case was severed from those of co-defendants Soto\\n\\nand Angel, who agreed to testify against Roman pursuant to\\n\\ncooperation agreements.\\n\\n After trial, the jury found Roman guilty on both charges.\\n\\nThe Hampton County Superior Court sentenced him to life\\n\\nimprisonment for the murder conviction. Roman timely appealed to\\n\\nthe SJC, arguing, inter alia, that the trial court erred by denying\\n\\nhis motion for a required finding of not guilty at the close of\\n\\nthe Commonwealth's case. The SJC affirmed his convictions and\\n\\nfound the evidence constitutionally sufficient to establish that\\n\\nhe shot Tiago.\\n\\n In January 2016, Roman timely filed a petition for a\\n\\nwrit of habeas corpus in the U.S. District Court for the District\\n\\nof Massachusetts, raising a single claim challenging the\\n\\n\\n - 4 -\\n\\fsufficiency of the evidence grounding his murder conviction. The\\n\\ndistrict court denied his petition but issued a Certificate of\\n\\nAppealability. We have jurisdiction under 28 U.S.C. § 2253(a).\\n\\nWe review the district court's denial of Roman's habeas petition\\n\\nde novo. See Scott v. Gelb, 810 F.3d 94, 98 (1st Cir. 2016).\\n\\n II.\\n\\n In this case, the petition assails only the sufficiency\\n\\nof the evidence as governed by Jackson v. Virginia, 443 U.S. 307\\n\\n(1979).1 To set aside the verdict under the Due Process Clause of\\n\\nthe U.S. Constitution for insufficient evidence, Roman needed to\\n\\nconvince the state courts that, \\\"after viewing the evidence in the\\n\\nlight most favorable to the prosecution, [no] rational trier of\\n\\nfact could have found the essential elements of the crime beyond\\n\\na reasonable doubt.\\\" Id. at 319. \\\"This standard 'exhibits great\\n\\nrespect for the jury's verdict,'\\\" Winfield v. O'Brien, 775 F.3d 1,\\n\\n7 (1st Cir. 2014) (quoting Magraw v. Roden, 743 F.3d 1, 4 (1st\\n\\nCir. 2014)), but it does not insulate verdicts based on\\n\\n\\\"evidentiary interpretations and illations that are unreasonable,\\n\\n\\n\\n 1\\n Under Commonwealth v. Latimore, 393 N.E.2d 370, 375 (Mass.\\n1979), Massachusetts state courts apply a sufficiency standard\\nthat is \\\"functionally identical\\\" to the standard promulgated by\\nthe U.S. Supreme Court in Jackson, 443 U.S. at 319. Logan v. Gelb,\\n790 F.3d 65, 71 (1st Cir. 2015). Thus, \\\"we can securely reason\\nthat in scouring the record for Latimore error and finding none\\nthe SJC effectively answered the federal constitutional question.\\\"\\nHousen v. Gelb, 744 F.3d 221, 225 (1st Cir. 2014) (quoting\\nLeftwich, 532 F.3d at 24).\\n\\n\\n - 5 -\\n\\finsupportable or overly speculative,\\\" id. (quoting United States\\n\\nv. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). Still, the Jackson\\n\\nstandard is \\\"rarely met where there is plausible evidence to\\n\\nsupport a verdict.\\\" Tash v. Roden, 626 F.3d 15, 20 (1st Cir.\\n\\n2010).\\n\\n Having lost in state court at trial and on appeal, Roman\\n\\ndoes not get a full redo in federal court. When a state court has\\n\\ndecided a legal claim on the merits, a habeas petitioner must show\\n\\nthat the ruling was \\\"contrary to, or involv[ed] an unreasonable\\n\\napplication of, clearly established Federal law, as determined by\\n\\nthe Supreme Court of the United States.\\\" Tash, 626 F.3d at 18\\n\\n(quoting 28 U.S.C. § 2254(d)(1)). In short, in a case such as\\n\\nthis, we ask not whether the evidence was sufficient; rather, we\\n\\nask whether the SJC's sufficiency finding was \\\"objectively\\n\\nunreasonable.\\\" See Hurtado v. Tucker, 245 F.3d 7, 18 (1st Cir.\\n\\n2001) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)); see\\n\\nalso id. at 16 (\\\"Habeas review involves the layering of two\\n\\nstandards. The habeas question of whether the state court decision\\n\\nis objectively unreasonable is layered on top of the underlying\\n\\nstandard governing the constitutional right asserted.\\\"). In this\\n\\ncontext, \\\"unreasonable\\\" means that the decision \\\"evinces some\\n\\nincrement of incorrectness beyond mere error.\\\" Leftwich, 532 F.3d\\n\\nat 23 (citing McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002)\\n\\n(en banc)).\\n\\n\\n - 6 -\\n\\f Here, Roman argues that the SJC's rejection of his\\n\\nsufficiency claim \\\"constituted an unreasonable application of the\\n\\nlaw to the facts [and] . . . was arbitrary and devoid of factual\\n\\nsupport.\\\" He contends that Soto's and Felipe's testimony at trial\\n\\nwas \\\"uncorroborated,\\\" \\\"perjurious,\\\" and \\\"illogical.\\\" Roman's\\n\\nconsistent defense has been that Felipe was the shooter because\\n\\nTiago sustained a fatal gunshot wound to his right temple, and\\n\\nFelipe was seated to Tiago's right. And, he asserts, Felipe and\\n\\nSoto both testified to hearing only one shot fired in the car. He\\n\\nalso points to the testimony of St. Amand, a disinterested witness,\\n\\nstating that she saw a man dressed like Felipe pulling something\\n\\n(presumably the victim's body) out of the rear of the Altima and\\n\\nsuggesting that two men were there with the body, as opposed to\\n\\nthe government's theory that Roman alone dumped the body on Newton\\n\\nStreet.\\n\\n But, as the SJC found, other trial testimony and video\\n\\nrecordings from local security cameras significantly undercut\\n\\nRoman's alternate theory. Soto and Felipe testified that Felipe\\n\\nfled from the rear passenger's side door as soon as he heard the\\n\\nfirst gunshot. Video footage from an Essex Street camera confirmed\\n\\nthat between 2:02:22 a.m. and 2:02:56 a.m., a person from the rear\\n\\npassenger's seat first exited the car, followed by a person from\\n\\nthe front passenger's seat, and then the driver. Roman, 18 N.E.3d\\n\\nat 1073. The last person to leave the car got out from where Roman\\n\\n\\n - 7 -\\n\\fsat, behind the driver's seat. That person walked around to the\\n\\nrear passenger's side, and leaned inside for about thirteen\\n\\nseconds, before getting in the driver's seat and driving away.\\n\\nId. Accordingly, the SJC reasonably determined that the jury could\\n\\nhave found that Felipe, then Angel and Soto, abandoned the car and\\n\\nran toward High Street, while Roman stayed behind and shot Tiago\\n\\nagain, just as Soto testified.\\n\\n Footage from Sam's Food, in turn, showed three men (not\\n\\ntwo) arriving at the store between 2:04:02 a.m. and 2:04:17 a.m.\\n\\nThe recording also showed Angel talking on his cellphone at the\\n\\nsame time the Altima arrived out front. Coupled with telephone\\n\\nrecords showing that Roman called Angel at around the same time as\\n\\nthe car pulled up, the SJC reasonably concluded that the jury could\\n\\nhave found in this evidence further support for the testimony that\\n\\nFelipe was at the store when Roman arrived with the car.\\n\\n The security camera recordings also allowed the SJC to\\n\\ndetermine that only one minute and fifty-six seconds passed from\\n\\nthe time the Altima stopped on Essex Street until it arrived at\\n\\nSam's Food store. The SJC therefore reasoned that \\\"[t]here would\\n\\nonly have been enough time for the convergence of Soto, Angel, and\\n\\nFelipe, and the Altima at Sam's . . . if events had occurred as\\n\\nSoto and Felipe testified.\\\" Roman, 18 N.E.3d at 1074. That is,\\n\\nif the three men who arrived on foot ran directly to Sam's from\\n\\nEssex Street.\\n\\n\\n - 8 -\\n\\f It is undoubtedly \\\"within the province of the jury\\\" to\\n\\nevaluate witness credibility. Foxworth, 570 F.3d at 427. A\\n\\nrational jury was certainly entitled to discredit St. Amand's\\n\\ntestimony in light of contravening evidence. See Housen, 744 F.3d\\n\\nat 226 (\\\"On review for evidentiary sufficiency, . . . 'a habeas\\n\\ncourt may not freely reweigh competing inferences but must accept\\n\\nthose reasonable inferences that are most compatible with the\\n\\njury's verdict.'\\\" (quoting Magraw, 743 F.3d at 7)); Hurtado, 245\\n\\nF.3d at 19 (\\\"[W]here the argument over the correctness of the state\\n\\ncourt's ultimate conclusion . . . call[s] for a choice between\\n\\ncredible (although mutually opposed) views, the habeas inquiry on\\n\\nobjective unreasonableness ends.\\\").\\n\\n Roman's argument that the fatal gunshot wound to Tiago's\\n\\nright temple \\\"conclusively\\\" proves that Felipe was the shooter\\n\\nlikewise falls flat. The medical examiner testified that Tiago\\n\\nsustained three gunshot wounds to the head: two to the left rear\\n\\nside almost on top of one another and a third on the right temple.\\n\\nAnd at least one of the left-side wounds was also potentially\\n\\nfatal. Roman, 18 N.E.3d at 1075. In any event, the evidence\\n\\ncredibly placed Roman on both the left and right sides of the\\n\\nvictim as he moved out of and around the car.\\n\\n Felipe's and Soto's testimony regarding how many\\n\\ngunshots they heard in the car is also not as conclusive as Roman\\n\\nwould have us believe. Although Soto initially testified that he\\n\\n\\n - 9 -\\n\\fheard one detonation, he also said that the sound was \\\"very\\\" loud\\n\\nand that he could not tell at first whether it came from inside or\\n\\noutside the vehicle. Soto clarified, in response to further\\n\\nquestioning, that he could not make out \\\"whether there was one\\n\\nbang or more than one bang\\\" because his ears were ringing. Felipe\\n\\ntestified only that he \\\"heard a bang\\\" and that he knew it was \\\"a\\n\\ngunshot.\\\" These statements are entirely consistent with the\\n\\ntestimony of the government's ballistics expert, who opined that\\n\\nthe type of gun likely used to kill the victim, a Jennings Bryco\\n\\nmodel J22 semiautomatic pistol, \\\"is very loud and capable of firing\\n\\nshots in rapid succession.\\\" Roman, 18 N.E.3d at 1075. Soto and\\n\\nFelipe also testified to hearing another gunshot as they ran\\n\\ntowards High Street. A shell casing recovered from the vicinity\\n\\nof where the Altima stopped on Essex Street further corroborates\\n\\nthis testimony and the SJC's conclusion that Roman fired a third\\n\\nshot into Tiago's right temple area as he stood outside the open\\n\\nright rear door of the car.\\n\\n Finally, Roman also emphasizes that, while he had no\\n\\nmotive to kill Tiago, the Gonzalez brothers had been involved in\\n\\nan altercation with Tiago the week before over an unpaid debt,\\n\\nafter which Tiago threatened to kill Angel. But, as the district\\n\\ncourt explained, because motive, while probative, is not an element\\n\\nof the crime of deliberately premeditated murder, the absence of\\n\\nevidence of motive is insufficient to undermine the SJC's decision\\n\\n\\n - 10 -\\n\\funder Jackson. See Commonwealth v. Sylvia, 921 N.E.2d 968, 975–\\n\\n76 (Mass. 2010) (noting that the government is not required to\\n\\nprove motive to prove first-degree murder on a theory of\\n\\npremeditation).\\n\\n Viewing the evidence as a whole in the light most\\n\\nfavorable to the verdict, we cannot say that the SJC unreasonably\\n\\napplied Jackson or reached an unreasonable determination of the\\n\\nfacts. The state court \\\"did not ignore material evidence or a key\\n\\nargument made by the defendant\\\" and \\\"[i]ts articulated reasons\\n\\nwent to the conclusions it reached.\\\" Hurtado, 245 F.3d at 18. It\\n\\nreasonably concluded that a rational jury could have found beyond\\n\\na reasonable doubt \\\"that [Roman] fired two shots at close range\\n\\ninto the left temple of the victim, then went around to the other\\n\\nside of the car, opened the rear passenger's side door, and fired\\n\\na third shot into the victim's right temple.\\\"\\n\\n III.\\n\\n For the foregoing reasons, we affirm the district\\n\\ncourt's denial of habeas relief.\\n\\n\\n\\n\\n - 11 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1965,"cells":{"id":{"kind":"number","value":4619043,"string":"4,619,043"},"name":{"kind":"string","value":"Gina CROSSETTI, as Personal Representative of the Estate of Robert A. Crossetti, Jr., Plaintiff, Appellant, v. CARGILL, INCORPORATED, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Crossetti v. Cargill, Incorporated"},"decision_date":{"kind":"string","value":"2019-05-13"},"docket_number":{"kind":"string","value":"18-1622P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Lynch, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1622\\n\\n GINA CROSSETTI, as Personal Representative of the Estate of\\n Robert A. Crossetti, Jr.,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n CARGILL, INCORPORATED,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Lynch, and Kayatta,\\n Circuit Judges.\\n\\n\\n Robert R. Herrick, with whom Nicholson Herrick LLP was on\\nbrief, for appellant.\\n Robert J. Gilbertson, with whom Jenny Gassman-Pines,\\nCaitlinrose H. Fisher, Greene Espel PLLP, Jeffrey E. Poindexter,\\nElizabeth S. Zuckerman, and Bulkley Richardson & Gelinas LLP were\\non brief, for appellee.\\n\\n\\n May 13, 2019\\n\\f LYNCH, Circuit Judge. Massachusetts Rule of Civil\\n\\nProcedure 4(j) requires a plaintiff to effect service of process\\n\\nwithin ninety days of filing suit. Mass. R. Civ. P. 4(j).\\n\\nMassachusetts courts accord this deadline \\\"the respect reserved\\n\\nfor a time bomb.\\\" Comm'r of Rev. v. Carrigan, 698 N.E.2d 23, 28\\n\\n(Mass. App. Ct. 1998) (quoting Braxton v. United States, 817 F.2d\\n\\n238, 241 (3d Cir. 1987)). The plaintiff in this removed diversity\\n\\nsuit failed to meet that deadline.\\n\\n In a thoughtful opinion, the court granted the\\n\\ndefendant's motion to dismiss for insufficient timely service of\\n\\nprocess. Crossetti v. Cargill, Inc., No. 3:18-CV-30002-KAR, 2018\\n\\nWL 2770130, at *1 (D. Mass. June 8, 2018). The court also denied\\n\\nthe plaintiff's motion for an extension of time to perfect service\\n\\nof process. Id. We affirm.\\n\\n I.\\n\\n We briefly describe the relevant background, taking the\\n\\ncomplaint's allegations as true for these purposes. In November\\n\\n2014, Robert Crossetti, Jr., died from work-related injuries\\n\\nsustained from a machine owned and \\\"superintende[d]\\\" by Cargill,\\n\\nInc. Gina Crossetti, as personal representative of Robert's\\n\\nestate, sued Cargill in Massachusetts Superior Court on September\\n\\n28, 2017, bringing claims for negligence and wrongful death. The\\n\\nstatutes of limitations on Crossetti's claims ran shortly\\n\\nthereafter, on November 19, 2017. See Mass. Gen. Laws ch. 260,\\n\\n\\n - 2 -\\n\\f§ 2A (three years for negligence); Mass. Gen. Laws ch. 229, § 2\\n\\n(same for wrongful death).\\n\\n Cargill maintains a registered agent to accept service\\n\\nof process in Massachusetts, but Crossetti served Cargill with\\n\\nprocess by mail. See Mass. R. Civ. P. 4(e)(3). On November 29,\\n\\n2017, Crossetti mailed a certified letter to \\\"Cargill\\n\\nIncorporated\\\" in which she enclosed a copy of the summons,\\n\\ncomplaint, civil action cover sheet, and scheduling order. For\\n\\npurposes of this appeal, it is not contested that this service of\\n\\nprocess was invalid because \\\"Massachusetts law requires that, in\\n\\nthe case of a corporation, service be made on 'the president,\\n\\ntreasurer, clerk, resident agent appointed pursuant to section 49\\n\\nof chapter 156D, cashier, secretary, agent or other officer in\\n\\ncharge of its business, or, if no such officer is found . . . any\\n\\nmember of the corporation.'\\\" Crossetti, 2018 WL 2770130, at *2\\n\\n(quoting Mass. Gen. Laws ch. 223, § 37).\\n\\n Cargill removed the action to federal court on January\\n\\n2, 2018, and moved to dismiss based on insufficient service of\\n\\nprocess a week later, on January 9, 2018. Also on January 9,\\n\\nCrossetti filed a motion to extend the time to perfect service of\\n\\nprocess. The court granted Cargill's motion to dismiss because\\n\\nCrossetti had failed to properly serve Cargill with process within\\n\\nninety days of filing her complaint and had not shown good cause\\n\\n\\n\\n\\n - 3 -\\n\\fto excuse that failure. Crossetti, 2018 WL 2770130, at *3-4\\n\\n(applying Mass. R. Civ. P. 4(j)).\\n\\n The court also denied Crossetti's motion to extend time\\n\\nto perfect service of process under Massachusetts Rule 6(b). Id.\\n\\nat *6. The relevant provision of that rule applies after a\\n\\ndeadline passes and allows for an enlargement of time when failure\\n\\nto meet the deadline \\\"was the result of excusable neglect.\\\" Mass.\\n\\nR. Civ. P. 6(b)(2). The court concluded that, under Massachusetts\\n\\nlaw, Rule 6(b) did not relieve Crossetti of her burden of showing\\n\\n\\\"good cause\\\" under Rule 4(j). Crossetti, 2018 WL 2770130, at *6.\\n\\nThe court did not reach whether Crossetti had shown \\\"excusable\\n\\nneglect.\\\"\\n\\n II.\\n\\n \\\"We review for abuse of discretion a dismissal for\\n\\ninsufficient service of process.\\\" Calderón Serra v. Banco\\n\\nSantander P.R., 747 F.3d 1, 7 (1st Cir. 2014). Finding no such\\n\\nabuse here, we affirm.\\n\\n Rule 4(j) requires a plaintiff to effect service of\\n\\nprocess within ninety days of filing. Mass. R. Civ. P. 4(j).\\n\\nFailure to meet this deadline may be excused only for \\\"good cause.\\\"\\n\\nId. \\\"Good cause is 'a stringent standard requiring diligen[t]'\\n\\nalbeit unsuccessful effort to complete service within the period\\n\\nprescribed by the rule.\\\" Carrigan, 698 N.E.2d at 26 (quoting\\n\\n\\n\\n\\n - 4 -\\n\\fShuman v. Stanley Works, 571 N.E.2d 633, 635 (Mass. App. Ct.\\n\\n1991)).\\n\\n Crossetti argues that Cargill had \\\"evaded\\\" service or\\n\\n\\\"concealed\\\" the defect in service and that the court erred in\\n\\nfailing to recognize this as \\\"good cause.\\\" As a matter of state\\n\\nlaw, both arguments are meritless. Cargill did not evade service;\\n\\nindeed, it maintained a registered agent in Massachusetts to\\n\\nreceive service, whom Crossetti chose not to utilize. See\\n\\nCarrigan, 698 N.E.2d at 26 (\\\"[W]e observe that the [plaintiff]\\n\\noffers few facts to support [her] characterization of [the\\n\\ndefendant] as evading service . . . .\\\"). And Cargill did not\\n\\nconceal the defect in process, nor was Cargill under any duty to\\n\\nnotify Crossetti of the defect. Crossetti would have discovered\\n\\nthe defect had she read the relevant rule of Massachusetts\\n\\nprocedure. \\\"Failure to read a rule is the antithesis of good\\n\\ncause.\\\" Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996).\\n\\nThe court did not abuse its discretion in concluding that Crossetti\\n\\nhad not shown \\\"good cause.\\\"\\n\\n This also disposes of Crossetti's claim for an extension\\n\\nof time under Rule 6(b)(2). Massachusetts case law clearly states\\n\\nthat the Rule 4(j) \\\"good cause\\\" standard applies when \\\"a plaintiff\\n\\nfiles a [Rule 6(b)(2)] motion to extend after expiration of the\\n\\noriginal ninety-day period.\\\" Passatempo v. McMenimen, 960 N.E.2d\\n\\n275, 293 n.30 (Mass. 2012); see Carrigan, 698 N.E.2d at 27 n.5.\\n\\n\\n - 5 -\\n\\f III.\\n\\nWe affirm.\\n\\n\\n\\n\\n - 6 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4396296/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4619043/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gina CROSSETTI, as Personal Representative of the Estate of Robert A. Crossetti, Jr., Plaintiff, Appellant, v. CARGILL, INCORPORATED, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1622\n\n GINA CROSSETTI, as Personal Representative of the Estate of\n Robert A. Crossetti, Jr.,\n\n Plaintiff, Appellant,\n\n v.\n\n CARGILL, INCORPORATED,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\n\n\n Before\n\n Torruella, Lynch, and Kayatta,\n Circuit Judges.\n\n\n Robert R. Herrick, with whom Nicholson Herrick LLP was on\nbrief, for appellant.\n Robert J. Gilbertson, with whom Jenny Gassman-Pines,\nCaitlinrose H. Fisher, Greene Espel PLLP, Jeffrey E. Poindexter,\nElizabeth S. Zuckerman, and Bulkley Richardson & Gelinas LLP were\non brief, for appellee.\n\n\n May 13, 2019\n\f LYNCH, Circuit Judge. Massachusetts Rule of Civil\n\nProcedure 4(j) requires a plaintiff to effect service of process\n\nwithin ninety days of filing suit. Mass. R. Civ. P. 4(j).\n\nMassachusetts courts accord this deadline \"the respect reserved\n\nfor a time bomb.\" Comm'r of Rev. v. Carrigan, 698 N.E.2d 23, 28\n\n(Mass. App. Ct. 1998) (quoting Braxton v. United States, 817 F.2d\n\n238, 241 (3d Cir. 1987)). The plaintiff in this removed diversity\n\nsuit failed to meet that deadline.\n\n In a thoughtful opinion, the court granted the\n\ndefendant's motion to dismiss for insufficient timely service of\n\nprocess. Crossetti v. Cargill, Inc., No. 3:18-CV-30002-KAR, 2018\n\nWL 2770130, at *1 (D. Mass. June 8, 2018). The court also denied\n\nthe plaintiff's motion for an extension of time to perfect service\n\nof process. Id. We affirm.\n\n I.\n\n We briefly describe the relevant background, taking the\n\ncomplaint's allegations as true for these purposes. In November\n\n2014, Robert Crossetti, Jr., died from work-related injuries\n\nsustained from a machine owned and \"superintende[d]\" by Cargill,\n\nInc. Gina Crossetti, as personal representative of Robert's\n\nestate, sued Cargill in Massachusetts Superior Court on September\n\n28, 2017, bringing claims for negligence and wrongful death. The\n\nstatutes of limitations on Crossetti's claims ran shortly\n\nthereafter, on November 19, 2017. See Mass. Gen. Laws ch. 260,\n\n\n - 2 -\n\f§ 2A (three years for negligence); Mass. Gen. Laws ch. 229, § 2\n\n(same for wrongful death).\n\n Cargill maintains a registered agent to accept service\n\nof process in Massachusetts, but Crossetti served Cargill with\n\nprocess by mail. See Mass. R. Civ. P. 4(e)(3). On November 29,\n\n2017, Crossetti mailed a certified letter to \"Cargill\n\nIncorporated\" in which she enclosed a copy of the summons,\n\ncomplaint, civil action cover sheet, and scheduling order. For\n\npurposes of this appeal, it is not contested that this service of\n\nprocess was invalid because \"Massachusetts law requires that, in\n\nthe case of a corporation, service be made on 'the president,\n\ntreasurer, clerk, resident agent appointed pursuant to section 49\n\nof chapter 156D, cashier, secretary, agent or other officer in\n\ncharge of its business, or, if no such officer is found . . . any\n\nmember of the corporation.'\" Crossetti, 2018 WL 2770130, at *2\n\n(quoting Mass. Gen. Laws ch. 223, § 37).\n\n Cargill removed the action to federal court on January\n\n2, 2018, and moved to dismiss based on insufficient service of\n\nprocess a week later, on January 9, 2018. Also on January 9,\n\nCrossetti filed a motion to extend the time to perfect service of\n\nprocess. The court granted Cargill's motion to dismiss because\n\nCrossetti had failed to properly serve Cargill with process within\n\nninety days of filing her complaint and had not shown good cause\n\n\n\n\n - 3 -\n\fto excuse that failure. Crossetti, 2018 WL 2770130, at *3-4\n\n(applying Mass. R. Civ. P. 4(j)).\n\n The court also denied Crossetti's motion to extend time\n\nto perfect service of process under Massachusetts Rule 6(b). Id.\n\nat *6. The relevant provision of that rule applies after a\n\ndeadline passes and allows for an enlargement of time when failure\n\nto meet the deadline \"was the result of excusable neglect.\" Mass.\n\nR. Civ. P. 6(b)(2). The court concluded that, under Massachusetts\n\nlaw, Rule 6(b) did not relieve Crossetti of her burden of showing\n\n\"good cause\" under Rule 4(j). Crossetti, 2018 WL 2770130, at *6.\n\nThe court did not reach whether Crossetti had shown \"excusable\n\nneglect.\"\n\n II.\n\n \"We review for abuse of discretion a dismissal for\n\ninsufficient service of process.\" Calderón Serra v. Banco\n\nSantander P.R., 747 F.3d 1, 7 (1st Cir. 2014). Finding no such\n\nabuse here, we affirm.\n\n Rule 4(j) requires a plaintiff to effect service of\n\nprocess within ninety days of filing. Mass. R. Civ. P. 4(j).\n\nFailure to meet this deadline may be excused only for \"good cause.\"\n\nId. \"Good cause is 'a stringent standard requiring diligen[t]'\n\nalbeit unsuccessful effort to complete service within the period\n\nprescribed by the rule.\" Carrigan, 698 N.E.2d at 26 (quoting\n\n\n\n\n - 4 -\n\fShuman v. Stanley Works, 571 N.E.2d 633, 635 (Mass. App. Ct.\n\n1991)).\n\n Crossetti argues that Cargill had \"evaded\" service or\n\n\"concealed\" the defect in service and that the court erred in\n\nfailing to recognize this as \"good cause.\" As a matter of state\n\nlaw, both arguments are meritless. Cargill did not evade service;\n\nindeed, it maintained a registered agent in Massachusetts to\n\nreceive service, whom Crossetti chose not to utilize. See\n\nCarrigan, 698 N.E.2d at 26 (\"[W]e observe that the [plaintiff]\n\noffers few facts to support [her] characterization of [the\n\ndefendant] as evading service . . . .\"). And Cargill did not\n\nconceal the defect in process, nor was Cargill under any duty to\n\nnotify Crossetti of the defect. Crossetti would have discovered\n\nthe defect had she read the relevant rule of Massachusetts\n\nprocedure. \"Failure to read a rule is the antithesis of good\n\ncause.\" Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996).\n\nThe court did not abuse its discretion in concluding that Crossetti\n\nhad not shown \"good cause.\"\n\n This also disposes of Crossetti's claim for an extension\n\nof time under Rule 6(b)(2). Massachusetts case law clearly states\n\nthat the Rule 4(j) \"good cause\" standard applies when \"a plaintiff\n\nfiles a [Rule 6(b)(2)] motion to extend after expiration of the\n\noriginal ninety-day period.\" Passatempo v. McMenimen, 960 N.E.2d\n\n275, 293 n.30 (Mass. 2012); see Carrigan, 698 N.E.2d at 27 n.5.\n\n\n - 5 -\n\f III.\n\nWe affirm.\n\n\n\n\n - 6 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gina CROSSETTI, as Personal Representative of the Estate of Robert A. Crossetti, Jr., Plaintiff, Appellant, v. CARGILL, INCORPORATED, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1622\\n\\n GINA CROSSETTI, as Personal Representative of the Estate of\\n Robert A. Crossetti, Jr.,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n CARGILL, INCORPORATED,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Lynch, and Kayatta,\\n Circuit Judges.\\n\\n\\n Robert R. Herrick, with whom Nicholson Herrick LLP was on\\nbrief, for appellant.\\n Robert J. Gilbertson, with whom Jenny Gassman-Pines,\\nCaitlinrose H. Fisher, Greene Espel PLLP, Jeffrey E. Poindexter,\\nElizabeth S. Zuckerman, and Bulkley Richardson & Gelinas LLP were\\non brief, for appellee.\\n\\n\\n May 13, 2019\\n\\f LYNCH, Circuit Judge. Massachusetts Rule of Civil\\n\\nProcedure 4(j) requires a plaintiff to effect service of process\\n\\nwithin ninety days of filing suit. Mass. R. Civ. P. 4(j).\\n\\nMassachusetts courts accord this deadline \\\"the respect reserved\\n\\nfor a time bomb.\\\" Comm'r of Rev. v. Carrigan, 698 N.E.2d 23, 28\\n\\n(Mass. App. Ct. 1998) (quoting Braxton v. United States, 817 F.2d\\n\\n238, 241 (3d Cir. 1987)). The plaintiff in this removed diversity\\n\\nsuit failed to meet that deadline.\\n\\n In a thoughtful opinion, the court granted the\\n\\ndefendant's motion to dismiss for insufficient timely service of\\n\\nprocess. Crossetti v. Cargill, Inc., No. 3:18-CV-30002-KAR, 2018\\n\\nWL 2770130, at *1 (D. Mass. June 8, 2018). The court also denied\\n\\nthe plaintiff's motion for an extension of time to perfect service\\n\\nof process. Id. We affirm.\\n\\n I.\\n\\n We briefly describe the relevant background, taking the\\n\\ncomplaint's allegations as true for these purposes. In November\\n\\n2014, Robert Crossetti, Jr., died from work-related injuries\\n\\nsustained from a machine owned and \\\"superintende[d]\\\" by Cargill,\\n\\nInc. Gina Crossetti, as personal representative of Robert's\\n\\nestate, sued Cargill in Massachusetts Superior Court on September\\n\\n28, 2017, bringing claims for negligence and wrongful death. The\\n\\nstatutes of limitations on Crossetti's claims ran shortly\\n\\nthereafter, on November 19, 2017. See Mass. Gen. Laws ch. 260,\\n\\n\\n - 2 -\\n\\f§ 2A (three years for negligence); Mass. Gen. Laws ch. 229, § 2\\n\\n(same for wrongful death).\\n\\n Cargill maintains a registered agent to accept service\\n\\nof process in Massachusetts, but Crossetti served Cargill with\\n\\nprocess by mail. See Mass. R. Civ. P. 4(e)(3). On November 29,\\n\\n2017, Crossetti mailed a certified letter to \\\"Cargill\\n\\nIncorporated\\\" in which she enclosed a copy of the summons,\\n\\ncomplaint, civil action cover sheet, and scheduling order. For\\n\\npurposes of this appeal, it is not contested that this service of\\n\\nprocess was invalid because \\\"Massachusetts law requires that, in\\n\\nthe case of a corporation, service be made on 'the president,\\n\\ntreasurer, clerk, resident agent appointed pursuant to section 49\\n\\nof chapter 156D, cashier, secretary, agent or other officer in\\n\\ncharge of its business, or, if no such officer is found . . . any\\n\\nmember of the corporation.'\\\" Crossetti, 2018 WL 2770130, at *2\\n\\n(quoting Mass. Gen. Laws ch. 223, § 37).\\n\\n Cargill removed the action to federal court on January\\n\\n2, 2018, and moved to dismiss based on insufficient service of\\n\\nprocess a week later, on January 9, 2018. Also on January 9,\\n\\nCrossetti filed a motion to extend the time to perfect service of\\n\\nprocess. The court granted Cargill's motion to dismiss because\\n\\nCrossetti had failed to properly serve Cargill with process within\\n\\nninety days of filing her complaint and had not shown good cause\\n\\n\\n\\n\\n - 3 -\\n\\fto excuse that failure. Crossetti, 2018 WL 2770130, at *3-4\\n\\n(applying Mass. R. Civ. P. 4(j)).\\n\\n The court also denied Crossetti's motion to extend time\\n\\nto perfect service of process under Massachusetts Rule 6(b). Id.\\n\\nat *6. The relevant provision of that rule applies after a\\n\\ndeadline passes and allows for an enlargement of time when failure\\n\\nto meet the deadline \\\"was the result of excusable neglect.\\\" Mass.\\n\\nR. Civ. P. 6(b)(2). The court concluded that, under Massachusetts\\n\\nlaw, Rule 6(b) did not relieve Crossetti of her burden of showing\\n\\n\\\"good cause\\\" under Rule 4(j). Crossetti, 2018 WL 2770130, at *6.\\n\\nThe court did not reach whether Crossetti had shown \\\"excusable\\n\\nneglect.\\\"\\n\\n II.\\n\\n \\\"We review for abuse of discretion a dismissal for\\n\\ninsufficient service of process.\\\" Calderón Serra v. Banco\\n\\nSantander P.R., 747 F.3d 1, 7 (1st Cir. 2014). Finding no such\\n\\nabuse here, we affirm.\\n\\n Rule 4(j) requires a plaintiff to effect service of\\n\\nprocess within ninety days of filing. Mass. R. Civ. P. 4(j).\\n\\nFailure to meet this deadline may be excused only for \\\"good cause.\\\"\\n\\nId. \\\"Good cause is 'a stringent standard requiring diligen[t]'\\n\\nalbeit unsuccessful effort to complete service within the period\\n\\nprescribed by the rule.\\\" Carrigan, 698 N.E.2d at 26 (quoting\\n\\n\\n\\n\\n - 4 -\\n\\fShuman v. Stanley Works, 571 N.E.2d 633, 635 (Mass. App. Ct.\\n\\n1991)).\\n\\n Crossetti argues that Cargill had \\\"evaded\\\" service or\\n\\n\\\"concealed\\\" the defect in service and that the court erred in\\n\\nfailing to recognize this as \\\"good cause.\\\" As a matter of state\\n\\nlaw, both arguments are meritless. Cargill did not evade service;\\n\\nindeed, it maintained a registered agent in Massachusetts to\\n\\nreceive service, whom Crossetti chose not to utilize. See\\n\\nCarrigan, 698 N.E.2d at 26 (\\\"[W]e observe that the [plaintiff]\\n\\noffers few facts to support [her] characterization of [the\\n\\ndefendant] as evading service . . . .\\\"). And Cargill did not\\n\\nconceal the defect in process, nor was Cargill under any duty to\\n\\nnotify Crossetti of the defect. Crossetti would have discovered\\n\\nthe defect had she read the relevant rule of Massachusetts\\n\\nprocedure. \\\"Failure to read a rule is the antithesis of good\\n\\ncause.\\\" Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996).\\n\\nThe court did not abuse its discretion in concluding that Crossetti\\n\\nhad not shown \\\"good cause.\\\"\\n\\n This also disposes of Crossetti's claim for an extension\\n\\nof time under Rule 6(b)(2). Massachusetts case law clearly states\\n\\nthat the Rule 4(j) \\\"good cause\\\" standard applies when \\\"a plaintiff\\n\\nfiles a [Rule 6(b)(2)] motion to extend after expiration of the\\n\\noriginal ninety-day period.\\\" Passatempo v. McMenimen, 960 N.E.2d\\n\\n275, 293 n.30 (Mass. 2012); see Carrigan, 698 N.E.2d at 27 n.5.\\n\\n\\n - 5 -\\n\\f III.\\n\\nWe affirm.\\n\\n\\n\\n\\n - 6 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1966,"cells":{"id":{"kind":"number","value":4619837,"string":"4,619,837"},"name":{"kind":"string","value":"Abinel ZENON, Plaintiff, Appellant, v. Associate Justice Margaret GUZMAN, in Her Official Capacity, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Zenon v. Guzman"},"decision_date":{"kind":"string","value":"2019-05-15"},"docket_number":{"kind":"string","value":"18-1119P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Thompson, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"THOMPSON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1119\\n\\n ABINEL ZENON,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n ASSOCIATE JUSTICE MARGARET GUZMAN,\\n in her official capacity,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Michael A. Ponsor, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Thompson, and Barron,\\n Circuit Judges.\\n\\n\\n Dana Goldblatt, with whom Law Office of Dana Goldblatt was on\\nbrief, for appellant.\\n Kerry D. Strayer, Assistant Attorney General, with whom Maura\\nHealey, Attorney General was on brief, for appellee.\\n\\n\\n May 15, 2019\\n\\f THOMPSON, Circuit Judge. This federal case is brought\\n\\nby an aggrieved litigant who asks us to step in and change the way\\n\\nsome things turned out for him in state court in Massachusetts.\\n\\nSpecifically, appellant Abinel Zenon sought a declaratory judgment\\n\\nlabelling as unconstitutional a protective order that remains in\\n\\neffect in his now-closed state criminal case. This request was\\n\\ndenied by the federal district court on appellee's motion to\\n\\ndismiss. Because we hold that the state court judge's actions are\\n\\nshielded from this attack by the doctrine of judicial immunity, we\\n\\naffirm.\\n\\n BACKGROUND1\\n\\n In 2013, Zenon was at the Springfield District Court for\\n\\nthe Commonwealth of Massachusetts (\\\"Springfield court\\\"), attending\\n\\nto some driving charges unrelated to this case.2 While there, he\\n\\nwound up getting into an altercation with two court security\\n\\nofficers who, according to Zenon, attacked him without\\n\\nprovocation, all the while \\\"making inappropriate comments to him\\n\\nregarding his ethnicity.\\\" As Zenon tells it, one of the officers,\\n\\nAlexander Sierra, a former member of the Springfield Police\\n\\n\\n 1 As is required in reviewing a ruling on a Rule 12(b)(6)\\nmotion to dismiss, we rely on the factual account set forth in\\nZenon's amended complaint, unless otherwise noted. Schatz v.\\nRepublican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)\\n(instructing us to \\\"take the complaint's well-pled (i.e., non-\\nconclusory, non-speculative) facts as true . . . .\\\").\\n\\n 2 We note the exact date of the incident is not in the record.\\n\\n\\n - 2 -\\n\\fDepartment, already had a reputation around the courthouse for\\n\\nviolence. When the scuffle ended, Zenon found himself charged and\\n\\narraigned on two counts of assault and battery on the officers.\\n\\n Based on Zenon's attorney's investigation of the\\n\\nincident, Zenon filed a notice of intent to assert the affirmative\\n\\ndefense of self-defense. To get more information with which to\\n\\nbolster his case, Zenon subpoenaed administrative records from the\\n\\nSpringfield court, seeking all written incident reports authored\\n\\nby Officer Sierra. In response to the subpoena, the records were\\n\\nfiled with the court and delivered in due course to appellee\\n\\nAssociate Justice Margaret Guzman (\\\"Judge Guzman\\\"), the judge\\n\\noverseeing Zenon's criminal case.\\n\\n Protective order\\n\\n On July 29, 2015, Judge Guzman, following a chambers\\n\\nconference, turned over Officer Sierra's trial incident reports\\n\\nfor the preceding two years, and ordered the Commonwealth to\\n\\nproduce Springfield Police Department reports involving Officer\\n\\nSierra for the same two-year period.3 But she released the records\\n\\nto defense counsel with restrictions, making the documents subject\\n\\nto a part written/part oral protective order. The written ruling\\n\\nwas encapsulated in a pre-printed order entitled \\\"PROTECTIVE ORDER\\n\\n\\n 3 The records indicated that Officer Sierra reported using\\nforce against twenty-three individuals, and that an additional\\nperson had filed a complaint of excessive force against him with\\nthe police department.\\n\\n\\n - 3 -\\n\\fFOR DEFENSE COUNSEL.\\\"4 The written order, amongst other things,\\n\\npermitted defense counsel to review the \\\"presumptively privileged\\\"\\n\\nrecords for purposes of preparing for trial, but prohibited her,\\n\\nwithout prior court approval, from disclosing any of the\\n\\ninformation to anyone, including Zenon or her investigator (but\\n\\nnot including colleagues). It also forbade her from contacting\\n\\nany of the individuals named in the reports without court\\n\\npermission. From the bench, Judge Guzman likewise allowed the\\n\\nCommonwealth access to the records with similar restrictions.\\n\\n As Zenon's criminal case proceeded, his counsel began to\\n\\nfeel hampered by the prohibitions imposed by the court and\\n\\nrepeatedly petitioned to have them lifted. Prior to receiving the\\n\\nrecords, defense counsel, on her own, had investigated other\\n\\nalleged episodes involving Officer Sierra and had identified and\\n\\ncontacted several participants and witnesses to discuss their own\\n\\nexperiences with him. Also, rumors abounded about other Officer\\n\\nSierra dust-ups but the protective order thwarted counsel's\\n\\nefforts to dig deeper. By September 2015, though, she had partial\\n\\n\\n\\n\\n 4\\n The authorized form for the protective order may be found\\njust after the Reporter's Notes that follow the text of Rule 17 in\\nMassachusetts' volume of court rules. The form includes spaces\\nfor the docket number, the defendant's name, the judge and defense\\ncounsel's signatures, the date, and the defense counsel's address\\nand bar number. All other provisions, including the specific\\nrestrictions, are part of the pre-printed form.\\n\\n\\n - 4 -\\n\\fsuccess in convincing Judge Guzman to vacate the protective order\\n\\nas to at least two incidents,5 but that was it.\\n\\n On September 23, 2015, Zenon filed a petition for\\n\\nextraordinary relief with the Supreme Judicial Court of\\n\\nMassachusetts (the \\\"SJC\\\") to stay his criminal trial and vacate\\n\\nthe protective order. This petition was denied without a hearing\\n\\nby a single justice, and Zenon pressed an appeal to the full court.\\n\\nA few days later, on October 5, 2015, Zenon entered a plea on the\\n\\nassault and battery charges: Zenon was not required to stipulate\\n\\nto the conduct alleged, and the charges were continued without a\\n\\n\\n\\n\\n 5As described in Zenon's amended complaint, in one incident\\na pregnant African-American teenager was crying in the hallway\\noutside the courtroom where her boyfriend was being detained.\\nAfter she failed to compose herself on instructions from Officer\\nSierra, he threw her face down on the floor and placed his knee on\\nher back, then pulled her upright and pushed her against the wall.\\nHe proceeded to hit her repeatedly in the face. Several hours\\nlater, the young woman miscarried her baby. She was later charged\\nwith assault and battery on Officer Sierra. This episode was\\nconfirmed by several bystanders, including an attorney.\\n The second incident also involved an African-American woman\\nwho had appeared before a judge on a child support matter. The\\njudge instructed her to file some paperwork with the clerks'\\noffice; however, at the clerks' office she was told to return to\\nthe courtroom to get her file. She was intercepted at the\\ncourtroom door by a court security officer and told that she was\\ntrespassing. Officer Sierra followed her back to the clerks'\\noffice where she was explaining the situation to the clerk.\\nOfficer Sierra grabbed her, threw her to the ground, and handcuffed\\nher. She too was charged with assault and battery on Officer\\nSierra.\\n\\n - 5 -\\n\\ffinding of guilt. But by its terms, the protective order remained\\n\\nin effect.6\\n\\n Following the disposition of Zenon's criminal case,\\n\\nother individuals who had been charged with assault and battery\\n\\nunder similar circumstances, as well as attorneys involved in other\\n\\ncourthouse incidents, contacted Zenon's attorney seeking\\n\\ninformation about Officer Sierra. Although Zenon had authorized\\n\\nhis attorney to provide these people with relevant information, he\\n\\nand his attorney had been prevented by the protective order from\\n\\nsharing any information about Officer Sierra.\\n\\n On February 4, 2016, a full panel of the SJC denied\\n\\nZenon's request to further consider his petition to vacate the\\n\\nprotective order. Zenon v. Commonwealth, 44 N.E.3d 858, 859 (Mass.\\n\\n2016). Summarizing the prior proceedings, the court wrote:\\n\\n\\\"[Zenon] sought certain third-party records in support of his claim\\n\\nthat the alleged victim was in fact the first aggressor.\\\" Id. at\\n\\n859 (citing Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005)).\\n\\nThe court continued: \\\"The judge issued the protective order\\n\\nconcerning these records, apparently following the Dwyer\\n\\n\\n\\n\\n 6 Paragraph Six of the protective order reads in part:\\n\\\"Notwithstanding the entry of any order terminating the case, this\\nProtective Order shall remain in effect unless terminated by entry\\nof a Court order.\\\"\\n\\n\\n - 6 -\\n\\fprotocol.\\\" Id. (citing Commonwealth v. Dwyer, 859 N.E.2d 400,\\n\\n414-19 (2006)).7\\n\\n In explicating its decision, the SJC focused on the\\n\\nprocedure available to Zenon when he initially filed his motion\\n\\n(that is, while the criminal charges were still pending). The\\n\\ncourt concluded that it did not need to exercise its \\\"extraordinary\\n\\npower of general superintendence under c. 211, §3\\\" to intervene in\\n\\nthe workings of the Springfield court because Zenon had \\\"an\\n\\nadequate alternative remedy\\\" in the normal trial and appellate\\n\\ncourt processes. Id. at 859-60 (citations and internal quotation\\n\\nmarks omitted).\\n\\n Had Zenon been tried and convicted of any offense, he\\n could have challenged the protective order on direct\\n appeal. . . . If Zenon believes that the records have\\n any continuing significance now that the charges have\\n been resolved, he could move in the District Court for\\n termination or modification of the protective order and,\\n if such a motion is denied, appeal in the ordinary course\\n from that ruling.\\n\\nId. at 859.\\n Federal litigation\\n\\n Opting not to follow any of the SJC's suggested pathways,\\n\\nZenon filed a complaint in federal court on July 14, 2016, seeking\\n\\na declaratory judgment that the protective order violates his First\\n\\nAmendment rights, pursuant to 42 U.S.C. § 1983, and naming as\\n\\ndefendants Judge Guzman and the District Court Division of the\\n\\n\\n 7 We'll talk about the Dwyer protocol, announced by the SJC\\nin 2006, in our analysis section.\\n\\n\\n - 7 -\\n\\fMassachusetts Trial Court.8 Judge Guzman responded with a Rule 12\\n\\nmotion to dismiss, making three principal arguments: that she was\\n\\nprotected from suit by sovereign immunity, pursuant to the Eleventh\\n\\nAmendment; that the federal court was barred from hearing the suit\\n\\nbased on the doctrines of Younger and Rooker-Feldman abstention;\\n\\nand that the complaint was barred by collateral estoppel. Zenon\\n\\nthen amended his complaint, dropping the Commonwealth Trial Court\\n\\nas a defendant. In due course a magistrate judge analyzed the\\n\\namended complaint and Judge Guzman's motion, and recommended that\\n\\nJudge Guzman's motion be denied. Thereafter, in a written\\n\\nobjection to the report and recommendation, Judge Guzman took the\\n\\nopportunity to add a new argument to her motion: judicial immunity.\\n\\nIn the end, after citing the confusion caused by Zenon's amendment\\n\\nto his complaint mid-motion practice, as well as \\\"considerations\\n\\nof comity,\\\" the district judge permitted Judge Guzman's lately-\\n\\nadded argument, and ruled that it carried the day, declining to\\n\\nadopt the report and recommendation and dismissing Zenon's claims.9\\n\\n\\n 8 And we are mindful that § 1983 does not mandate exhaustion\\nof state court remedies. See, e.g., Steffel v. Thompson, 415 U.S.\\n452, 472–73 (1974) (\\\"When federal claims are premised on [§ 1983]\\n-- as they are here -- we have not required exhaustion of state\\njudicial or administrative remedies, recognizing the paramount\\nrole Congress has assigned to the federal courts to protect\\nconstitutional rights.\\\").\\n\\n 9 The court also concluded that both the Younger and Rooker-\\nFeldman abstention doctrines, though an imperfect fit, posed a bar\\nto relief, holding that they \\\"cast a shadow over Plaintiff's case.\\\"\\nAlthough Zenon challenges this finding on appeal, because we rest\\n\\n\\n - 8 -\\n\\f ANALYSIS\\n\\n Zenon's appeal (as now distilled) brings the matter to\\n\\nour door for an examination of whether Judge Guzman is protected\\n\\nfrom this lawsuit by judicial immunity. First, some parameters\\n\\nfor our review.\\n\\n With respect to a motion to dismiss, we take as true the\\n\\nallegations of the complaint, as well as any inferences we can\\n\\ndraw from it in the plaintiff's favor. Fed. R. Civ. P. 12(b)(6).\\n\\nTo assess the adequacy of the complaint, our circuit has instructed\\n\\nthat the review should be handled like this: first, \\\"isolate and\\n\\nignore statements in the complaint that simply offer legal labels\\n\\nand conclusions or merely rehash cause-of-action elements[,]\\\" then\\n\\n\\\"take the complaint's well-pled (i.e., non-conclusory, non-\\n\\nspeculative) facts as true, drawing all reasonable inferences in\\n\\nthe pleader's favor, and see if they plausibly narrate a claim for\\n\\nrelief.\\\" Schatz v. Republican State Leadership Comm., 669 F.3d\\n\\n50, 55 (1st Cir. 2012) (citing Ocasio–Hernández v. Fortuño–Burset,\\n\\n640 F.3d 1, 12 (1st Cir. 2011)) (discussing, among other cases,\\n\\nAshcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.\\n\\nTwombly, 550 U.S. 544 (2007)). \\\"Plausible, of course, means\\n\\nsomething more than merely possible, and gauging a pleaded\\n\\nsituation's plausibility is a 'context-specific' job that compels\\n\\n\\n\\nour ruling on the doctrine of judicial immunity, we leave\\nabstention on the bookshelf for now.\\n\\n\\n - 9 -\\n\\fus 'to draw on' our 'judicial experience and common sense.'\\\"\\n\\nSchatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).\\n\\n When analyzing a defense of judicial immunity, our\\n\\nreview is much the same. \\\"Affirmative defenses . . . may be raised\\n\\nin a motion to dismiss . . ., provided that the facts establishing\\n\\nthe defense [are] clear 'on the face of the plaintiff's\\n\\npleadings.'\\\" Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-\\n\\n14 (1st Cir. 2009) (quoting Trans–Spec Truck Serv., Inc. v.\\n\\nCaterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008)) (alterations\\n\\nin original). And we are mindful that we may consider \\\"not only\\n\\nthe complaint but also matters fairly incorporated within it and\\n\\nmatters susceptible to judicial notice\\\" without converting the\\n\\nmotion to dismiss into a motion for summary judgment. In re\\n\\nColonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).\\n\\nUltimately, when the facts establishing the defense appear within\\n\\nthe four corners of the complaint, and upon review there is \\\"no\\n\\ndoubt\\\" that the plaintiff's claim is barred by the raised defense,\\n\\ndismissal is appropriate. Blackstone Realty LLC v. F.D.I.C., 244\\n\\nF.3d 193, 197 (1st Cir. 2001) (quotation marks omitted).\\n\\n In undertaking this process, we have considered hearing\\n\\ntranscripts from the Springfield court, attached as exhibits to\\n\\nthe amended complaint. Schatz, 669 F.3d at 55-56 (noting that the\\n\\ncourt may consider, on a motion to dismiss, documents attached to\\n\\nor incorporated into the complaint).\\n\\n\\n - 10 -\\n\\f Now, with the rules of play in place, we proceed to\\n\\nconsider de novo whether, based on the facts pled, judicial\\n\\nimmunity bars Zenon's claims. When all is said and done, we\\n\\ndetermine that Judge Guzman is entitled to immunity, as we explain.\\n\\n A primer on judicial immunity\\n\\n The time-honored doctrine of judicial immunity was set\\n\\nforth long ago by the Supreme Court in Bradley v. Fisher, wherein\\n\\nthe Court observed, complete with requisite references to England\\n\\nand the king, that judicial immunity \\\"obtains in all countries\\n\\nwhere there is any wellordered system of jurisprudence.\\\" 80 U.S.\\n\\n(13 Wall.) 335, 347 (1871). Permitting judges to be questioned on\\n\\ntheir rulings, the Court said, would lead to \\\"continual\\n\\ncalumniations\\\" and nothing short of the \\\"subversion of all\\n\\njustice.\\\" Id. at 348 (internal quotation marks and citation\\n\\nomitted). The breadth of the protection is fulsome, shielding\\n\\njudges even when their actions are malicious, corrupt, mistaken,\\n\\nor taken in bad faith; its purpose not to buffer bad judges but\\n\\n\\\"for the benefit of the public, whose interest it is that the\\n\\njudges should be at liberty to exercise their functions with\\n\\nindependence and without fear of consequences.\\\" Pierson v. Ray,\\n\\n386 U.S. 547, 554 (1967) (internal quotation marks and citation\\n\\nomitted). Therefore, it is an axiom of black letter law that when\\n\\na judge carries out traditional adjudicatory functions, he or she\\n\\nhas absolute immunity for those actions. Goldstein v. Galvin, 719\\n\\n\\n - 11 -\\n\\fF.3d 16, 25 (1st Cir. 2013). And, the Supreme Court has recognized\\n\\nthat judicial immunity applies in the context of suits -- like\\n\\nZenon's -- that are brought under § 1983. Pierson, 386 U.S. at\\n\\n554-55.\\n\\n To determine if a judge is entitled to the full\\n\\nprotection of the doctrine's deflector shield,10 the Supreme Court\\n\\nhas assessed whether the judge's act was one normally performed by\\n\\na judge, and whether the parties were dealing with the judge in\\n\\nhis or her judicial capacity. Stump v. Sparkman, 435 U.S. 349,\\n\\n362 (1978). Judicial immunity is appropriate unless a judge is\\n\\ncarrying out an activity that is not adjudicatory. Forrester v.\\n\\nWhite, 484 U.S. 219, 227-28 (1988) (\\\"Administrative decisions,\\n\\neven though they may be essential to the very functioning of the\\n\\ncourts, have not similarly been regarded as judicial acts.\\\"). The\\n\\nForrester Court observed that \\\"it was the nature of the function\\n\\nperformed, not the identity of the actor who performed it, that\\n\\ninformed our immunity analysis.\\\" Id. at 229.\\n\\n The Supreme Court elaborated further in Mireles v. Waco,\\n\\nexplaining that immunity is overcome only in cases where a judge\\n\\nis carrying out a nonjudicial action, or in instances where a judge\\n\\ntakes an action, though seemingly \\\"judicial in nature,\\\" that is\\n\\n\\n 10 And it's important to note: absolute judicial immunity\\nmeans not just immunity from damages, but immunity from suit\\naltogether. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing\\nMitchell v. Forsyth, 472 U.S. 511, 526 (1985)).\\n\\n\\n - 12 -\\n\\f\\\"in the complete absence of all jurisdiction.\\\" 502 U.S. 9, 11-12\\n\\n(1991) (per curiam) (citing Forrester, 484 U.S. at 227-29; Stump,\\n\\n435 U.S. at 356-60; Bradley, 80 U.S. (13 Wall.) at 347).11\\n\\n\\\"Accordingly,\\\" the Mireles Court instructed, \\\"as the language in\\n\\nStump indicates, the relevant inquiry is the 'nature' and\\n\\n'function' of the act, not the act itself.\\\" 502 U.S. at 13 (quoting\\n\\nStump, 435 U.S. at 362).\\n\\n In accordance with this analytic tradition, we look\\n\\nclosely at Judge Guzman's actions -- \\\"the function performed\\\" --\\n\\nin issuing and maintaining the protective order. In Zenon's eyes,\\n\\nshe was -- plain and simple -- a gatekeeping administrator for the\\n\\ncourt's personnel records. But as Judge Guzman sees things, she\\n\\nwas performing (in the words of the district court) \\\"the bread-\\n\\nand-butter adjudicatory function of a judicial officer\\\" --\\n\\nrefereeing a discovery dispute.\\n\\n The battle of the procedural rules\\n\\n The parties each attempt to justify their position by\\n\\ndrawing our attention to the state procedural rules they relied on\\n\\n\\n\\n\\n 11\\n In such circumstances, a state actor who happens to be a\\njudge and who violates the Constitution while acting as an\\nadministrator might properly be subjected to suit under 42 U.S.C.\\n§ 1983. In re Justices of Supreme Court, 695 F.2d 17, 21 (1st\\nCir. 1982). But as then circuit-judge Stephen Breyer explained,\\n\\\"§ 1983 does not provide relief against judges acting purely in\\ntheir adjudicative capacity, any more than, say, a typical state's\\nlibel law imposes liability on a postal carrier or telephone\\ncompany for simply conveying a libelous message.\\\" Id. at 22.\\n\\n\\n - 13 -\\n\\fin connection with the contested state court rulings. Zenon, in\\n\\nhis amended complaint, asserts that he made a request for\\n\\nadministrative court records pursuant to Rule 2(2) of the Uniform\\n\\nRules on Subpoenas to Court Officials, which, according to Zenon,\\n\\ngoverns public access to these records. Mass. Trial Court Rule\\n\\nIX(2)(2). This rule provides that an \\\"official keeper of the\\n\\nrecords of the Trial Court shall provide an attested copy of court\\n\\nrecords or administrative records to a party who requests . . .\\n\\nsuch records . . . .\\\" Mass. Trial Court Rule IX(2)(2). As he\\n\\ntells us, he sought internal records from the Trial Court's\\n\\nExecutive Office; records generated pursuant to the administrative\\n\\nfunctioning of the court and completely unconnected to any criminal\\n\\nor civil proceeding before the court. Continuing on, he says that\\n\\nthe production of this material could not properly be viewed as a\\n\\ndiscovery motion because the state's criminal procedural rule,\\n\\nRule 14, only applies to material in \\\"the possession, custody or\\n\\ncontrol of the prosecutor, or persons under the prosecutor's\\n\\ndirection and control . . . .\\\" Mass. R. Crim. P. 14(a)(1)(A).\\n\\nAnd clearly, Zenon argues, the Massachusetts trial court records\\n\\nare not subject to the prosecutor's direction or control. Again,\\n\\nto put it simply, Zenon urges that in considering his request for\\n\\ncourt documents, Judge Guzman necessarily and exclusively had to\\n\\nhave been exercising administrative authority over administrative\\n\\nrecords.\\n\\n\\n - 14 -\\n\\f In response to Zenon's document request, Judge Guzman\\n\\nissued a pre-printed stock order which cites to Rule 17(a)(2) of\\n\\nthe Massachusetts Rules of Criminal Procedure. This rule\\n\\nauthorizes the clerk to issue a summons to a person \\\"to produce\\n\\nthe books, papers, documents, or other objects designated therein\\n\\n. . . within a reasonable time prior to the trial or prior to the\\n\\ntime when they are to be offered in evidence . . . .\\\" Mass. R.\\n\\nCrim. P. 17(a)(2). But notwithstanding the rule number referenced\\n\\nin the order, Judge Guzman explains in her brief that, contrary to\\n\\nZenon's assertions, her protective order is best characterized as\\n\\na garden-variety discovery order, issued in accordance with Rule\\n\\n14, which governs pretrial discovery and procedures, including\\n\\nprotective orders. Mass. R. Crim. P. 14(a)(6).\\n\\n Ultimately, we conclude that whatever rule got\\n\\nreferenced is not, at least in this instance, determinative of the\\n\\nquestion we must answer here: what is the essential character of\\n\\nJudge Guzman's actions in issuing the protective order?12\\n\\nRemember, as the Supreme Court instructed in Stump and Mireles,\\n\\n\\n\\n\\n 12\\n While the records themselves may be administrative, it is\\nthe judge's action of overseeing their production with which we\\nare concerned. Mass. Trial Court Rule IX is described as a\\ndiscovery rule by the Massachusetts Practice Series. 49 Mass.\\nPrac., Discovery § 1:31. In this case, we refrain from opining as\\nto whether requests to the trial court made pursuant to the Uniform\\nRules on Subpoenas to Court Officials may always be considered\\njudicial in character, or may sometimes be classified as\\nadministrative.\\n\\n\\n - 15 -\\n\\f\\\"the relevant inquiry is the 'nature' and 'function' of the act .\\n\\n. . . In other words, we look to the particular act's relation to\\n\\na general function normally performed by a judge . . . .\\\" Mireles,\\n\\n502 U.S. at 13 (quoting Stump, 435 U.S. at 362). Accordingly, we\\n\\nturn our attention to the record to better gauge Judge Guzman's\\n\\nactions.\\n\\n Zenon v. Guzman\\n\\n We begin by taking judicial notice of the SJC's\\n\\nFebruary 4, 2016 order resulting from Zenon's interlocutory appeal\\n\\nwhich we find relevant to our inquiry. Zenon, 44 N.E.3d 858. As\\n\\nstated earlier, the SJC mentioned two cases of import to our\\n\\nconsideration: one, Adjutant established the standard to be\\n\\nfollowed by a trial judge in determining what evidence of a\\n\\nvictim's prior aggressive behavior can be admitted at trial to\\n\\nbolster a defendant's claim of self-defense. 824 N.E.2d at 10-\\n\\n11. The other, Dwyer, refined the state's protocols for granting\\n\\ndefendants pre-trial access to statutorily privileged third-party\\n\\nrecords of witnesses in criminal proceedings. 859 N.E.2d at 414.\\n\\nPursuant to the protocol, \\\"presumptively privileged records\\\" are\\n\\nto be held by the court under seal, and reviewed only by defense\\n\\ncounsel after counsel has entered into \\\" a stringent protective\\n\\norder\\\" containing \\\"nondisclosure provisions.\\\" Id. at 418-19.\\n\\nTherefore, in explaining its decision to deny Zenon appellate\\n\\nrelief, the SJC made clear that it understood Zenon's record\\n\\n\\n - 16 -\\n\\fsubpoena as a request for an Adjutant hearing. Equally as pellucid\\n\\nis the SJC's understanding of Judge Guzman's in limine hearing as\\n\\na procedure in implementation of the Dwyer protocols. In\\n\\nMassachusetts, both of these matters are routine pretrial\\n\\nadjudicatory proceedings and generally subject to direct appellate\\n\\nreview. See Commonwealth v. Chambers, 989 N.E.2d 483, 493-94\\n\\n(Mass. 2013) (ordering a new trial after trial court excluded\\n\\nevidence of victim's prior act of violence); Rodriguez v.\\n\\nCommonwealth, 871 N.E.2d 486, 487 (Mass. 2007) (noting that post-\\n\\nconviction relief is available for defendant who was unable to\\n\\nobtain third party documents at trial).\\n\\n How the SJC treats such hearings is, for us, strong\\n\\nevidence of the nature and function of Judge Guzman's actions.\\n\\nSee Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994) (noting\\n\\nthat the \\\"Supreme Judicial Court, not this court, is the\\n\\nauthoritative interpreter of state statutes\\\").13\\n\\n Transcripts\\n\\n Further evidence of how best to characterize Judge\\n\\nGuzman's actions lies in the transcripts from the proceedings\\n\\n\\n 13\\n Relatedly, in considering whether a judge's contested\\naction \\\"is a function normally performed by a judge,\\\" the Stump\\nCourt made an examination of \\\"the expectations of the parties,\\ni.e., whether they dealt with the judge in his judicial capacity.\\\"\\n435 U.S. 362. The way that the SJC understands the procedural\\nrules governing the parties dispute surely bears on the\\n\\\"expectations of the parties\\\" for purposes of determining the\\nnature and function of Judge Guzman's actions here.\\n\\n\\n - 17 -\\n\\fbelow.14 In her interactions with the parties, she specifically\\n\\ntalks about Adjutant, repeatedly expressing her concern about the\\n\\nrelevance and ultimate admissibility of the evidence that may be\\n\\nunearthed through defense counsel's inquiries into the Officer-\\n\\nSierra incidents.\\n\\n For instance, on July 29, 2015, Judge Guzman begins\\n\\nthe on-the-record hearing by describing the session as a\\n\\nmemorialization of \\\"my first conference with both counsel,\\\" about\\n\\nissues discussed in chambers. She continues:\\n\\n [T]he first thing I did was review the\\n documents that were brought in by -- after the\\n defendant's request for unredacted and full\\n copies of the record potentially related to\\n the Adjutant issues that were filed. . . . I\\n reviewed those records and without my making\\n a determination of whether or not there is any\\n admissibility in what their use may be for\\n I've determined that a copy of all the\\n unredacted records will be provided to both\\n counsel and both counsel will endorse a\\n protective order. . . . [I]t was indicated to\\n defense that she may review all of these\\n records and at any time wishes -- if wishing\\n to discuss this matter with an investigator or\\n pursue inquiry through any of the information\\n contained in the records that she will notify\\n the Court through the clerk ex parte with a\\n motion for good cause to either inform[] both\\n parties of the contained information or to act\\n on that information.\\n\\nTr., July 29, 2015.\\n\\n\\n\\n\\n 14\\n And to refresh the reader's recollection, the transcripts\\nwere attached to Zenon's amended complaint.\\n\\n\\n - 18 -\\n\\f On September 14, 2015, Judge Guzman tells counsel that\\n\\nshe wants to hear oral argument that morning concerning: \\\"The\\n\\nquestion about the Adjutant material, not just the access issue\\n\\nbut whether or not we are going to -- whether or not the request\\n\\nis to use any information, call any witnesses . . . .\\\" Tr., Sept.\\n\\n14, 2015. When both attorneys indicate that they are not prepared\\n\\nto go forward, Judge Guzman and defense counsel engage in a\\n\\ncolloquy about whether there will be a \\\"pre voir dire argument on\\n\\nthat issue.\\\" Id. Judge Guzman goes on to express her concern\\n\\nabout the admissibility of the evidence that defense counsel is\\n\\ntrying to gather: \\\"So there is [] really a very narrow area of\\n\\nadmissibility that we are focused on, and the first is whether or\\n\\nnot there is a valid defense claim that's been raised, and second,\\n\\nwhether there is a question as to who is the first aggressor.\\\"\\n\\nId.\\n\\n Additionally, Judge Guzman addresses her obligation to\\n\\nbalance the privacy rights of those members of the community who\\n\\nmay be identified in the Officer-Sierra incident reports with\\n\\nZenon's rights to prepare his defense to criminal charges. These\\n\\nconcerns, she noted, encompassed Officer Sierra's interests in\\n\\nmaintaining the confidentiality of his personnel and medical\\n\\nrecords. Tr., Aug. 26, 2015. Unmistakably then, Dwyer, though\\n\\nnot expressly mentioned, animated Judge Guzman's thinking, and the\\n\\n\\n\\n\\n - 19 -\\n\\fstock protective order she issued reflects Dwyer's instructive\\n\\ndirectives.15\\n\\n We believe the issues addressed by Judge Guzman go to\\n\\nthe heart of a judge's role in regulating discovery and ruling on\\n\\nthe admissibility of evidence in a criminal trial. See Fed. R.\\n\\n\\n 15\\n For example, on August 26, 2015, the parties convened, and\\nJudge Guzman explained her work in the preceding weeks:\\n\\n There is very little case law in the area we are in,\\n which is a public display of official capacity action\\n and request to use records which are there is no grounds\\n to believe that there is an official determination of\\n first aggressor behavior by Officer Sierra. I have no\\n information that anyone has []ever made a formal\\n complaint against Officer Sierra alleging first\\n aggressor behavior that would qualify the Adjutant.\\n\\nTr., Aug. 26, 2015. During the same hearing, Judge Guzman cautions\\nZenon's attorney about talking to other people, in connection with\\nOfficer-Sierra incidents, because those other people might be\\nrepresented by counsel.\\n\\n Later Judge Guzman addresses the protective order\\ndirectly, allowing the order to be loosened to permit defense\\ncounsel to contact two people who had expressly waived\\nconfidentiality. Here she expresses broader concerns:\\n\\n Once the persons who are involved in the incidents make\\n a determination that they don't wish to have the\\n protection of the Court, the court is going to allow the\\n motion to expand. In fact, the protective order will\\n not be involved in those incidents. . . . The protective\\n order remains as to the other incidents that -- where is\\n no determination that the persons who are involved have\\n agreed to waive any confidentiality of any protection of\\n the courts. . . . And that is the fourth motion to\\n modify the protective order, and I think that covers all\\n the issues in that.\\n\\nId.\\n\\n\\n\\n - 20 -\\n\\fCrim. P. 12 and 16(d)(1); Mass. R. Crim. P. 17(a)(2); Nystedt v.\\n\\nNigro, 700 F.3d 25, 30-31 (1st Cir. 2012); United States v. Cianci,\\n\\n378 F.3d 71, 100-01 (1st Cir. 2004); Dwyer, 859 N.E.2d at 418;\\n\\nAdjutant, 824 N.E.2d at 12 (noting that trial judges are afforded\\n\\ngreat discretion \\\"in weighing the probative value of evidence\\n\\nagainst any prejudicial effect it might have on a jury\\\"). Although\\n\\nwe have been supplied with over a hundred pages of transcripts, we\\n\\nneed dig no further to conclude that Judge Guzman's concerns, and\\n\\nresulting rulings, were inarguably judicial in both their \\\"nature\\\"\\n\\nand their \\\"function.\\\"16 Mireles, 502 U.S. at 13 (quoting Stump,\\n\\n435 U.S. at 362).\\n\\n CONCLUSION\\n\\n For the reasons stated, we affirm the district court's\\n\\ndecision. Each party to bear its own costs.\\n\\n\\n\\n\\n 16Indeed, as we've already pointed out, in considering whether\\na judge's contested action \\\"is a function normally performed by a\\njudge,\\\" the Supreme Court in Stump looked at \\\"the expectations of\\nthe parties, i.e., whether they dealt with the judge in his\\njudicial capacity.\\\" 435 U.S. 362. As we see it, the parties'\\nexpectations here, which Stump makes relevant, are evident.\\nZenon's attorney requested the records to aid in preparing Zenon's\\nself-defense claim in the pending criminal case. The records were\\nreleased, subject to a protective order, which was announced during\\nthe course of an adversarial hearing in the courtroom. Subsequent\\nhearings were held, during which counsel argued that the scope of\\nthe protective order should be limited -- discussions in which the\\njudge and counsel focused on the potential admissibility of\\nevidence, pursuant to Massachusetts law. These circumstances\\ndemonstrate that counsel was dealing with the judge in her \\\"bread-\\nand-butter\\\" judicial capacity.\\n\\n\\n - 21 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4397090/\", \"author_raw\": \"THOMPSON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4619837/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Abinel ZENON, Plaintiff, Appellant, v. Associate Justice Margaret GUZMAN, in Her Official Capacity, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1119\n\n ABINEL ZENON,\n\n Plaintiff, Appellant,\n\n v.\n\n ASSOCIATE JUSTICE MARGARET GUZMAN,\n in her official capacity,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Michael A. Ponsor, U.S. District Judge]\n\n\n Before\n\n Lynch, Thompson, and Barron,\n Circuit Judges.\n\n\n Dana Goldblatt, with whom Law Office of Dana Goldblatt was on\nbrief, for appellant.\n Kerry D. Strayer, Assistant Attorney General, with whom Maura\nHealey, Attorney General was on brief, for appellee.\n\n\n May 15, 2019\n\f THOMPSON, Circuit Judge. This federal case is brought\n\nby an aggrieved litigant who asks us to step in and change the way\n\nsome things turned out for him in state court in Massachusetts.\n\nSpecifically, appellant Abinel Zenon sought a declaratory judgment\n\nlabelling as unconstitutional a protective order that remains in\n\neffect in his now-closed state criminal case. This request was\n\ndenied by the federal district court on appellee's motion to\n\ndismiss. Because we hold that the state court judge's actions are\n\nshielded from this attack by the doctrine of judicial immunity, we\n\naffirm.\n\n BACKGROUND1\n\n In 2013, Zenon was at the Springfield District Court for\n\nthe Commonwealth of Massachusetts (\"Springfield court\"), attending\n\nto some driving charges unrelated to this case.2 While there, he\n\nwound up getting into an altercation with two court security\n\nofficers who, according to Zenon, attacked him without\n\nprovocation, all the while \"making inappropriate comments to him\n\nregarding his ethnicity.\" As Zenon tells it, one of the officers,\n\nAlexander Sierra, a former member of the Springfield Police\n\n\n 1 As is required in reviewing a ruling on a Rule 12(b)(6)\nmotion to dismiss, we rely on the factual account set forth in\nZenon's amended complaint, unless otherwise noted. Schatz v.\nRepublican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)\n(instructing us to \"take the complaint's well-pled (i.e., non-\nconclusory, non-speculative) facts as true . . . .\").\n\n 2 We note the exact date of the incident is not in the record.\n\n\n - 2 -\n\fDepartment, already had a reputation around the courthouse for\n\nviolence. When the scuffle ended, Zenon found himself charged and\n\narraigned on two counts of assault and battery on the officers.\n\n Based on Zenon's attorney's investigation of the\n\nincident, Zenon filed a notice of intent to assert the affirmative\n\ndefense of self-defense. To get more information with which to\n\nbolster his case, Zenon subpoenaed administrative records from the\n\nSpringfield court, seeking all written incident reports authored\n\nby Officer Sierra. In response to the subpoena, the records were\n\nfiled with the court and delivered in due course to appellee\n\nAssociate Justice Margaret Guzman (\"Judge Guzman\"), the judge\n\noverseeing Zenon's criminal case.\n\n Protective order\n\n On July 29, 2015, Judge Guzman, following a chambers\n\nconference, turned over Officer Sierra's trial incident reports\n\nfor the preceding two years, and ordered the Commonwealth to\n\nproduce Springfield Police Department reports involving Officer\n\nSierra for the same two-year period.3 But she released the records\n\nto defense counsel with restrictions, making the documents subject\n\nto a part written/part oral protective order. The written ruling\n\nwas encapsulated in a pre-printed order entitled \"PROTECTIVE ORDER\n\n\n 3 The records indicated that Officer Sierra reported using\nforce against twenty-three individuals, and that an additional\nperson had filed a complaint of excessive force against him with\nthe police department.\n\n\n - 3 -\n\fFOR DEFENSE COUNSEL.\"4 The written order, amongst other things,\n\npermitted defense counsel to review the \"presumptively privileged\"\n\nrecords for purposes of preparing for trial, but prohibited her,\n\nwithout prior court approval, from disclosing any of the\n\ninformation to anyone, including Zenon or her investigator (but\n\nnot including colleagues). It also forbade her from contacting\n\nany of the individuals named in the reports without court\n\npermission. From the bench, Judge Guzman likewise allowed the\n\nCommonwealth access to the records with similar restrictions.\n\n As Zenon's criminal case proceeded, his counsel began to\n\nfeel hampered by the prohibitions imposed by the court and\n\nrepeatedly petitioned to have them lifted. Prior to receiving the\n\nrecords, defense counsel, on her own, had investigated other\n\nalleged episodes involving Officer Sierra and had identified and\n\ncontacted several participants and witnesses to discuss their own\n\nexperiences with him. Also, rumors abounded about other Officer\n\nSierra dust-ups but the protective order thwarted counsel's\n\nefforts to dig deeper. By September 2015, though, she had partial\n\n\n\n\n 4\n The authorized form for the protective order may be found\njust after the Reporter's Notes that follow the text of Rule 17 in\nMassachusetts' volume of court rules. The form includes spaces\nfor the docket number, the defendant's name, the judge and defense\ncounsel's signatures, the date, and the defense counsel's address\nand bar number. All other provisions, including the specific\nrestrictions, are part of the pre-printed form.\n\n\n - 4 -\n\fsuccess in convincing Judge Guzman to vacate the protective order\n\nas to at least two incidents,5 but that was it.\n\n On September 23, 2015, Zenon filed a petition for\n\nextraordinary relief with the Supreme Judicial Court of\n\nMassachusetts (the \"SJC\") to stay his criminal trial and vacate\n\nthe protective order. This petition was denied without a hearing\n\nby a single justice, and Zenon pressed an appeal to the full court.\n\nA few days later, on October 5, 2015, Zenon entered a plea on the\n\nassault and battery charges: Zenon was not required to stipulate\n\nto the conduct alleged, and the charges were continued without a\n\n\n\n\n 5As described in Zenon's amended complaint, in one incident\na pregnant African-American teenager was crying in the hallway\noutside the courtroom where her boyfriend was being detained.\nAfter she failed to compose herself on instructions from Officer\nSierra, he threw her face down on the floor and placed his knee on\nher back, then pulled her upright and pushed her against the wall.\nHe proceeded to hit her repeatedly in the face. Several hours\nlater, the young woman miscarried her baby. She was later charged\nwith assault and battery on Officer Sierra. This episode was\nconfirmed by several bystanders, including an attorney.\n The second incident also involved an African-American woman\nwho had appeared before a judge on a child support matter. The\njudge instructed her to file some paperwork with the clerks'\noffice; however, at the clerks' office she was told to return to\nthe courtroom to get her file. She was intercepted at the\ncourtroom door by a court security officer and told that she was\ntrespassing. Officer Sierra followed her back to the clerks'\noffice where she was explaining the situation to the clerk.\nOfficer Sierra grabbed her, threw her to the ground, and handcuffed\nher. She too was charged with assault and battery on Officer\nSierra.\n\n - 5 -\n\ffinding of guilt. But by its terms, the protective order remained\n\nin effect.6\n\n Following the disposition of Zenon's criminal case,\n\nother individuals who had been charged with assault and battery\n\nunder similar circumstances, as well as attorneys involved in other\n\ncourthouse incidents, contacted Zenon's attorney seeking\n\ninformation about Officer Sierra. Although Zenon had authorized\n\nhis attorney to provide these people with relevant information, he\n\nand his attorney had been prevented by the protective order from\n\nsharing any information about Officer Sierra.\n\n On February 4, 2016, a full panel of the SJC denied\n\nZenon's request to further consider his petition to vacate the\n\nprotective order. Zenon v. Commonwealth, 44 N.E.3d 858, 859 (Mass.\n\n2016). Summarizing the prior proceedings, the court wrote:\n\n\"[Zenon] sought certain third-party records in support of his claim\n\nthat the alleged victim was in fact the first aggressor.\" Id. at\n\n859 (citing Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005)).\n\nThe court continued: \"The judge issued the protective order\n\nconcerning these records, apparently following the Dwyer\n\n\n\n\n 6 Paragraph Six of the protective order reads in part:\n\"Notwithstanding the entry of any order terminating the case, this\nProtective Order shall remain in effect unless terminated by entry\nof a Court order.\"\n\n\n - 6 -\n\fprotocol.\" Id. (citing Commonwealth v. Dwyer, 859 N.E.2d 400,\n\n414-19 (2006)).7\n\n In explicating its decision, the SJC focused on the\n\nprocedure available to Zenon when he initially filed his motion\n\n(that is, while the criminal charges were still pending). The\n\ncourt concluded that it did not need to exercise its \"extraordinary\n\npower of general superintendence under c. 211, §3\" to intervene in\n\nthe workings of the Springfield court because Zenon had \"an\n\nadequate alternative remedy\" in the normal trial and appellate\n\ncourt processes. Id. at 859-60 (citations and internal quotation\n\nmarks omitted).\n\n Had Zenon been tried and convicted of any offense, he\n could have challenged the protective order on direct\n appeal. . . . If Zenon believes that the records have\n any continuing significance now that the charges have\n been resolved, he could move in the District Court for\n termination or modification of the protective order and,\n if such a motion is denied, appeal in the ordinary course\n from that ruling.\n\nId. at 859.\n Federal litigation\n\n Opting not to follow any of the SJC's suggested pathways,\n\nZenon filed a complaint in federal court on July 14, 2016, seeking\n\na declaratory judgment that the protective order violates his First\n\nAmendment rights, pursuant to 42 U.S.C. § 1983, and naming as\n\ndefendants Judge Guzman and the District Court Division of the\n\n\n 7 We'll talk about the Dwyer protocol, announced by the SJC\nin 2006, in our analysis section.\n\n\n - 7 -\n\fMassachusetts Trial Court.8 Judge Guzman responded with a Rule 12\n\nmotion to dismiss, making three principal arguments: that she was\n\nprotected from suit by sovereign immunity, pursuant to the Eleventh\n\nAmendment; that the federal court was barred from hearing the suit\n\nbased on the doctrines of Younger and Rooker-Feldman abstention;\n\nand that the complaint was barred by collateral estoppel. Zenon\n\nthen amended his complaint, dropping the Commonwealth Trial Court\n\nas a defendant. In due course a magistrate judge analyzed the\n\namended complaint and Judge Guzman's motion, and recommended that\n\nJudge Guzman's motion be denied. Thereafter, in a written\n\nobjection to the report and recommendation, Judge Guzman took the\n\nopportunity to add a new argument to her motion: judicial immunity.\n\nIn the end, after citing the confusion caused by Zenon's amendment\n\nto his complaint mid-motion practice, as well as \"considerations\n\nof comity,\" the district judge permitted Judge Guzman's lately-\n\nadded argument, and ruled that it carried the day, declining to\n\nadopt the report and recommendation and dismissing Zenon's claims.9\n\n\n 8 And we are mindful that § 1983 does not mandate exhaustion\nof state court remedies. See, e.g., Steffel v. Thompson, 415 U.S.\n452, 472–73 (1974) (\"When federal claims are premised on [§ 1983]\n-- as they are here -- we have not required exhaustion of state\njudicial or administrative remedies, recognizing the paramount\nrole Congress has assigned to the federal courts to protect\nconstitutional rights.\").\n\n 9 The court also concluded that both the Younger and Rooker-\nFeldman abstention doctrines, though an imperfect fit, posed a bar\nto relief, holding that they \"cast a shadow over Plaintiff's case.\"\nAlthough Zenon challenges this finding on appeal, because we rest\n\n\n - 8 -\n\f ANALYSIS\n\n Zenon's appeal (as now distilled) brings the matter to\n\nour door for an examination of whether Judge Guzman is protected\n\nfrom this lawsuit by judicial immunity. First, some parameters\n\nfor our review.\n\n With respect to a motion to dismiss, we take as true the\n\nallegations of the complaint, as well as any inferences we can\n\ndraw from it in the plaintiff's favor. Fed. R. Civ. P. 12(b)(6).\n\nTo assess the adequacy of the complaint, our circuit has instructed\n\nthat the review should be handled like this: first, \"isolate and\n\nignore statements in the complaint that simply offer legal labels\n\nand conclusions or merely rehash cause-of-action elements[,]\" then\n\n\"take the complaint's well-pled (i.e., non-conclusory, non-\n\nspeculative) facts as true, drawing all reasonable inferences in\n\nthe pleader's favor, and see if they plausibly narrate a claim for\n\nrelief.\" Schatz v. Republican State Leadership Comm., 669 F.3d\n\n50, 55 (1st Cir. 2012) (citing Ocasio–Hernández v. Fortuño–Burset,\n\n640 F.3d 1, 12 (1st Cir. 2011)) (discussing, among other cases,\n\nAshcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.\n\nTwombly, 550 U.S. 544 (2007)). \"Plausible, of course, means\n\nsomething more than merely possible, and gauging a pleaded\n\nsituation's plausibility is a 'context-specific' job that compels\n\n\n\nour ruling on the doctrine of judicial immunity, we leave\nabstention on the bookshelf for now.\n\n\n - 9 -\n\fus 'to draw on' our 'judicial experience and common sense.'\"\n\nSchatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).\n\n When analyzing a defense of judicial immunity, our\n\nreview is much the same. \"Affirmative defenses . . . may be raised\n\nin a motion to dismiss . . ., provided that the facts establishing\n\nthe defense [are] clear 'on the face of the plaintiff's\n\npleadings.'\" Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-\n\n14 (1st Cir. 2009) (quoting Trans–Spec Truck Serv., Inc. v.\n\nCaterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008)) (alterations\n\nin original). And we are mindful that we may consider \"not only\n\nthe complaint but also matters fairly incorporated within it and\n\nmatters susceptible to judicial notice\" without converting the\n\nmotion to dismiss into a motion for summary judgment. In re\n\nColonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).\n\nUltimately, when the facts establishing the defense appear within\n\nthe four corners of the complaint, and upon review there is \"no\n\ndoubt\" that the plaintiff's claim is barred by the raised defense,\n\ndismissal is appropriate. Blackstone Realty LLC v. F.D.I.C., 244\n\nF.3d 193, 197 (1st Cir. 2001) (quotation marks omitted).\n\n In undertaking this process, we have considered hearing\n\ntranscripts from the Springfield court, attached as exhibits to\n\nthe amended complaint. Schatz, 669 F.3d at 55-56 (noting that the\n\ncourt may consider, on a motion to dismiss, documents attached to\n\nor incorporated into the complaint).\n\n\n - 10 -\n\f Now, with the rules of play in place, we proceed to\n\nconsider de novo whether, based on the facts pled, judicial\n\nimmunity bars Zenon's claims. When all is said and done, we\n\ndetermine that Judge Guzman is entitled to immunity, as we explain.\n\n A primer on judicial immunity\n\n The time-honored doctrine of judicial immunity was set\n\nforth long ago by the Supreme Court in Bradley v. Fisher, wherein\n\nthe Court observed, complete with requisite references to England\n\nand the king, that judicial immunity \"obtains in all countries\n\nwhere there is any wellordered system of jurisprudence.\" 80 U.S.\n\n(13 Wall.) 335, 347 (1871). Permitting judges to be questioned on\n\ntheir rulings, the Court said, would lead to \"continual\n\ncalumniations\" and nothing short of the \"subversion of all\n\njustice.\" Id. at 348 (internal quotation marks and citation\n\nomitted). The breadth of the protection is fulsome, shielding\n\njudges even when their actions are malicious, corrupt, mistaken,\n\nor taken in bad faith; its purpose not to buffer bad judges but\n\n\"for the benefit of the public, whose interest it is that the\n\njudges should be at liberty to exercise their functions with\n\nindependence and without fear of consequences.\" Pierson v. Ray,\n\n386 U.S. 547, 554 (1967) (internal quotation marks and citation\n\nomitted). Therefore, it is an axiom of black letter law that when\n\na judge carries out traditional adjudicatory functions, he or she\n\nhas absolute immunity for those actions. Goldstein v. Galvin, 719\n\n\n - 11 -\n\fF.3d 16, 25 (1st Cir. 2013). And, the Supreme Court has recognized\n\nthat judicial immunity applies in the context of suits -- like\n\nZenon's -- that are brought under § 1983. Pierson, 386 U.S. at\n\n554-55.\n\n To determine if a judge is entitled to the full\n\nprotection of the doctrine's deflector shield,10 the Supreme Court\n\nhas assessed whether the judge's act was one normally performed by\n\na judge, and whether the parties were dealing with the judge in\n\nhis or her judicial capacity. Stump v. Sparkman, 435 U.S. 349,\n\n362 (1978). Judicial immunity is appropriate unless a judge is\n\ncarrying out an activity that is not adjudicatory. Forrester v.\n\nWhite, 484 U.S. 219, 227-28 (1988) (\"Administrative decisions,\n\neven though they may be essential to the very functioning of the\n\ncourts, have not similarly been regarded as judicial acts.\"). The\n\nForrester Court observed that \"it was the nature of the function\n\nperformed, not the identity of the actor who performed it, that\n\ninformed our immunity analysis.\" Id. at 229.\n\n The Supreme Court elaborated further in Mireles v. Waco,\n\nexplaining that immunity is overcome only in cases where a judge\n\nis carrying out a nonjudicial action, or in instances where a judge\n\ntakes an action, though seemingly \"judicial in nature,\" that is\n\n\n 10 And it's important to note: absolute judicial immunity\nmeans not just immunity from damages, but immunity from suit\naltogether. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing\nMitchell v. Forsyth, 472 U.S. 511, 526 (1985)).\n\n\n - 12 -\n\f\"in the complete absence of all jurisdiction.\" 502 U.S. 9, 11-12\n\n(1991) (per curiam) (citing Forrester, 484 U.S. at 227-29; Stump,\n\n435 U.S. at 356-60; Bradley, 80 U.S. (13 Wall.) at 347).11\n\n\"Accordingly,\" the Mireles Court instructed, \"as the language in\n\nStump indicates, the relevant inquiry is the 'nature' and\n\n'function' of the act, not the act itself.\" 502 U.S. at 13 (quoting\n\nStump, 435 U.S. at 362).\n\n In accordance with this analytic tradition, we look\n\nclosely at Judge Guzman's actions -- \"the function performed\" --\n\nin issuing and maintaining the protective order. In Zenon's eyes,\n\nshe was -- plain and simple -- a gatekeeping administrator for the\n\ncourt's personnel records. But as Judge Guzman sees things, she\n\nwas performing (in the words of the district court) \"the bread-\n\nand-butter adjudicatory function of a judicial officer\" --\n\nrefereeing a discovery dispute.\n\n The battle of the procedural rules\n\n The parties each attempt to justify their position by\n\ndrawing our attention to the state procedural rules they relied on\n\n\n\n\n 11\n In such circumstances, a state actor who happens to be a\njudge and who violates the Constitution while acting as an\nadministrator might properly be subjected to suit under 42 U.S.C.\n§ 1983. In re Justices of Supreme Court, 695 F.2d 17, 21 (1st\nCir. 1982). But as then circuit-judge Stephen Breyer explained,\n\"§ 1983 does not provide relief against judges acting purely in\ntheir adjudicative capacity, any more than, say, a typical state's\nlibel law imposes liability on a postal carrier or telephone\ncompany for simply conveying a libelous message.\" Id. at 22.\n\n\n - 13 -\n\fin connection with the contested state court rulings. Zenon, in\n\nhis amended complaint, asserts that he made a request for\n\nadministrative court records pursuant to Rule 2(2) of the Uniform\n\nRules on Subpoenas to Court Officials, which, according to Zenon,\n\ngoverns public access to these records. Mass. Trial Court Rule\n\nIX(2)(2). This rule provides that an \"official keeper of the\n\nrecords of the Trial Court shall provide an attested copy of court\n\nrecords or administrative records to a party who requests . . .\n\nsuch records . . . .\" Mass. Trial Court Rule IX(2)(2). As he\n\ntells us, he sought internal records from the Trial Court's\n\nExecutive Office; records generated pursuant to the administrative\n\nfunctioning of the court and completely unconnected to any criminal\n\nor civil proceeding before the court. Continuing on, he says that\n\nthe production of this material could not properly be viewed as a\n\ndiscovery motion because the state's criminal procedural rule,\n\nRule 14, only applies to material in \"the possession, custody or\n\ncontrol of the prosecutor, or persons under the prosecutor's\n\ndirection and control . . . .\" Mass. R. Crim. P. 14(a)(1)(A).\n\nAnd clearly, Zenon argues, the Massachusetts trial court records\n\nare not subject to the prosecutor's direction or control. Again,\n\nto put it simply, Zenon urges that in considering his request for\n\ncourt documents, Judge Guzman necessarily and exclusively had to\n\nhave been exercising administrative authority over administrative\n\nrecords.\n\n\n - 14 -\n\f In response to Zenon's document request, Judge Guzman\n\nissued a pre-printed stock order which cites to Rule 17(a)(2) of\n\nthe Massachusetts Rules of Criminal Procedure. This rule\n\nauthorizes the clerk to issue a summons to a person \"to produce\n\nthe books, papers, documents, or other objects designated therein\n\n. . . within a reasonable time prior to the trial or prior to the\n\ntime when they are to be offered in evidence . . . .\" Mass. R.\n\nCrim. P. 17(a)(2). But notwithstanding the rule number referenced\n\nin the order, Judge Guzman explains in her brief that, contrary to\n\nZenon's assertions, her protective order is best characterized as\n\na garden-variety discovery order, issued in accordance with Rule\n\n14, which governs pretrial discovery and procedures, including\n\nprotective orders. Mass. R. Crim. P. 14(a)(6).\n\n Ultimately, we conclude that whatever rule got\n\nreferenced is not, at least in this instance, determinative of the\n\nquestion we must answer here: what is the essential character of\n\nJudge Guzman's actions in issuing the protective order?12\n\nRemember, as the Supreme Court instructed in Stump and Mireles,\n\n\n\n\n 12\n While the records themselves may be administrative, it is\nthe judge's action of overseeing their production with which we\nare concerned. Mass. Trial Court Rule IX is described as a\ndiscovery rule by the Massachusetts Practice Series. 49 Mass.\nPrac., Discovery § 1:31. In this case, we refrain from opining as\nto whether requests to the trial court made pursuant to the Uniform\nRules on Subpoenas to Court Officials may always be considered\njudicial in character, or may sometimes be classified as\nadministrative.\n\n\n - 15 -\n\f\"the relevant inquiry is the 'nature' and 'function' of the act .\n\n. . . In other words, we look to the particular act's relation to\n\na general function normally performed by a judge . . . .\" Mireles,\n\n502 U.S. at 13 (quoting Stump, 435 U.S. at 362). Accordingly, we\n\nturn our attention to the record to better gauge Judge Guzman's\n\nactions.\n\n Zenon v. Guzman\n\n We begin by taking judicial notice of the SJC's\n\nFebruary 4, 2016 order resulting from Zenon's interlocutory appeal\n\nwhich we find relevant to our inquiry. Zenon, 44 N.E.3d 858. As\n\nstated earlier, the SJC mentioned two cases of import to our\n\nconsideration: one, Adjutant established the standard to be\n\nfollowed by a trial judge in determining what evidence of a\n\nvictim's prior aggressive behavior can be admitted at trial to\n\nbolster a defendant's claim of self-defense. 824 N.E.2d at 10-\n\n11. The other, Dwyer, refined the state's protocols for granting\n\ndefendants pre-trial access to statutorily privileged third-party\n\nrecords of witnesses in criminal proceedings. 859 N.E.2d at 414.\n\nPursuant to the protocol, \"presumptively privileged records\" are\n\nto be held by the court under seal, and reviewed only by defense\n\ncounsel after counsel has entered into \" a stringent protective\n\norder\" containing \"nondisclosure provisions.\" Id. at 418-19.\n\nTherefore, in explaining its decision to deny Zenon appellate\n\nrelief, the SJC made clear that it understood Zenon's record\n\n\n - 16 -\n\fsubpoena as a request for an Adjutant hearing. Equally as pellucid\n\nis the SJC's understanding of Judge Guzman's in limine hearing as\n\na procedure in implementation of the Dwyer protocols. In\n\nMassachusetts, both of these matters are routine pretrial\n\nadjudicatory proceedings and generally subject to direct appellate\n\nreview. See Commonwealth v. Chambers, 989 N.E.2d 483, 493-94\n\n(Mass. 2013) (ordering a new trial after trial court excluded\n\nevidence of victim's prior act of violence); Rodriguez v.\n\nCommonwealth, 871 N.E.2d 486, 487 (Mass. 2007) (noting that post-\n\nconviction relief is available for defendant who was unable to\n\nobtain third party documents at trial).\n\n How the SJC treats such hearings is, for us, strong\n\nevidence of the nature and function of Judge Guzman's actions.\n\nSee Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994) (noting\n\nthat the \"Supreme Judicial Court, not this court, is the\n\nauthoritative interpreter of state statutes\").13\n\n Transcripts\n\n Further evidence of how best to characterize Judge\n\nGuzman's actions lies in the transcripts from the proceedings\n\n\n 13\n Relatedly, in considering whether a judge's contested\naction \"is a function normally performed by a judge,\" the Stump\nCourt made an examination of \"the expectations of the parties,\ni.e., whether they dealt with the judge in his judicial capacity.\"\n435 U.S. 362. The way that the SJC understands the procedural\nrules governing the parties dispute surely bears on the\n\"expectations of the parties\" for purposes of determining the\nnature and function of Judge Guzman's actions here.\n\n\n - 17 -\n\fbelow.14 In her interactions with the parties, she specifically\n\ntalks about Adjutant, repeatedly expressing her concern about the\n\nrelevance and ultimate admissibility of the evidence that may be\n\nunearthed through defense counsel's inquiries into the Officer-\n\nSierra incidents.\n\n For instance, on July 29, 2015, Judge Guzman begins\n\nthe on-the-record hearing by describing the session as a\n\nmemorialization of \"my first conference with both counsel,\" about\n\nissues discussed in chambers. She continues:\n\n [T]he first thing I did was review the\n documents that were brought in by -- after the\n defendant's request for unredacted and full\n copies of the record potentially related to\n the Adjutant issues that were filed. . . . I\n reviewed those records and without my making\n a determination of whether or not there is any\n admissibility in what their use may be for\n I've determined that a copy of all the\n unredacted records will be provided to both\n counsel and both counsel will endorse a\n protective order. . . . [I]t was indicated to\n defense that she may review all of these\n records and at any time wishes -- if wishing\n to discuss this matter with an investigator or\n pursue inquiry through any of the information\n contained in the records that she will notify\n the Court through the clerk ex parte with a\n motion for good cause to either inform[] both\n parties of the contained information or to act\n on that information.\n\nTr., July 29, 2015.\n\n\n\n\n 14\n And to refresh the reader's recollection, the transcripts\nwere attached to Zenon's amended complaint.\n\n\n - 18 -\n\f On September 14, 2015, Judge Guzman tells counsel that\n\nshe wants to hear oral argument that morning concerning: \"The\n\nquestion about the Adjutant material, not just the access issue\n\nbut whether or not we are going to -- whether or not the request\n\nis to use any information, call any witnesses . . . .\" Tr., Sept.\n\n14, 2015. When both attorneys indicate that they are not prepared\n\nto go forward, Judge Guzman and defense counsel engage in a\n\ncolloquy about whether there will be a \"pre voir dire argument on\n\nthat issue.\" Id. Judge Guzman goes on to express her concern\n\nabout the admissibility of the evidence that defense counsel is\n\ntrying to gather: \"So there is [] really a very narrow area of\n\nadmissibility that we are focused on, and the first is whether or\n\nnot there is a valid defense claim that's been raised, and second,\n\nwhether there is a question as to who is the first aggressor.\"\n\nId.\n\n Additionally, Judge Guzman addresses her obligation to\n\nbalance the privacy rights of those members of the community who\n\nmay be identified in the Officer-Sierra incident reports with\n\nZenon's rights to prepare his defense to criminal charges. These\n\nconcerns, she noted, encompassed Officer Sierra's interests in\n\nmaintaining the confidentiality of his personnel and medical\n\nrecords. Tr., Aug. 26, 2015. Unmistakably then, Dwyer, though\n\nnot expressly mentioned, animated Judge Guzman's thinking, and the\n\n\n\n\n - 19 -\n\fstock protective order she issued reflects Dwyer's instructive\n\ndirectives.15\n\n We believe the issues addressed by Judge Guzman go to\n\nthe heart of a judge's role in regulating discovery and ruling on\n\nthe admissibility of evidence in a criminal trial. See Fed. R.\n\n\n 15\n For example, on August 26, 2015, the parties convened, and\nJudge Guzman explained her work in the preceding weeks:\n\n There is very little case law in the area we are in,\n which is a public display of official capacity action\n and request to use records which are there is no grounds\n to believe that there is an official determination of\n first aggressor behavior by Officer Sierra. I have no\n information that anyone has []ever made a formal\n complaint against Officer Sierra alleging first\n aggressor behavior that would qualify the Adjutant.\n\nTr., Aug. 26, 2015. During the same hearing, Judge Guzman cautions\nZenon's attorney about talking to other people, in connection with\nOfficer-Sierra incidents, because those other people might be\nrepresented by counsel.\n\n Later Judge Guzman addresses the protective order\ndirectly, allowing the order to be loosened to permit defense\ncounsel to contact two people who had expressly waived\nconfidentiality. Here she expresses broader concerns:\n\n Once the persons who are involved in the incidents make\n a determination that they don't wish to have the\n protection of the Court, the court is going to allow the\n motion to expand. In fact, the protective order will\n not be involved in those incidents. . . . The protective\n order remains as to the other incidents that -- where is\n no determination that the persons who are involved have\n agreed to waive any confidentiality of any protection of\n the courts. . . . And that is the fourth motion to\n modify the protective order, and I think that covers all\n the issues in that.\n\nId.\n\n\n\n - 20 -\n\fCrim. P. 12 and 16(d)(1); Mass. R. Crim. P. 17(a)(2); Nystedt v.\n\nNigro, 700 F.3d 25, 30-31 (1st Cir. 2012); United States v. Cianci,\n\n378 F.3d 71, 100-01 (1st Cir. 2004); Dwyer, 859 N.E.2d at 418;\n\nAdjutant, 824 N.E.2d at 12 (noting that trial judges are afforded\n\ngreat discretion \"in weighing the probative value of evidence\n\nagainst any prejudicial effect it might have on a jury\"). Although\n\nwe have been supplied with over a hundred pages of transcripts, we\n\nneed dig no further to conclude that Judge Guzman's concerns, and\n\nresulting rulings, were inarguably judicial in both their \"nature\"\n\nand their \"function.\"16 Mireles, 502 U.S. at 13 (quoting Stump,\n\n435 U.S. at 362).\n\n CONCLUSION\n\n For the reasons stated, we affirm the district court's\n\ndecision. Each party to bear its own costs.\n\n\n\n\n 16Indeed, as we've already pointed out, in considering whether\na judge's contested action \"is a function normally performed by a\njudge,\" the Supreme Court in Stump looked at \"the expectations of\nthe parties, i.e., whether they dealt with the judge in his\njudicial capacity.\" 435 U.S. 362. As we see it, the parties'\nexpectations here, which Stump makes relevant, are evident.\nZenon's attorney requested the records to aid in preparing Zenon's\nself-defense claim in the pending criminal case. The records were\nreleased, subject to a protective order, which was announced during\nthe course of an adversarial hearing in the courtroom. Subsequent\nhearings were held, during which counsel argued that the scope of\nthe protective order should be limited -- discussions in which the\njudge and counsel focused on the potential admissibility of\nevidence, pursuant to Massachusetts law. These circumstances\ndemonstrate that counsel was dealing with the judge in her \"bread-\nand-butter\" judicial capacity.\n\n\n - 21 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Abinel ZENON, Plaintiff, Appellant, v. Associate Justice Margaret GUZMAN, in Her Official Capacity, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1119\\n\\n ABINEL ZENON,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n ASSOCIATE JUSTICE MARGARET GUZMAN,\\n in her official capacity,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Michael A. Ponsor, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Thompson, and Barron,\\n Circuit Judges.\\n\\n\\n Dana Goldblatt, with whom Law Office of Dana Goldblatt was on\\nbrief, for appellant.\\n Kerry D. Strayer, Assistant Attorney General, with whom Maura\\nHealey, Attorney General was on brief, for appellee.\\n\\n\\n May 15, 2019\\n\\f THOMPSON, Circuit Judge. This federal case is brought\\n\\nby an aggrieved litigant who asks us to step in and change the way\\n\\nsome things turned out for him in state court in Massachusetts.\\n\\nSpecifically, appellant Abinel Zenon sought a declaratory judgment\\n\\nlabelling as unconstitutional a protective order that remains in\\n\\neffect in his now-closed state criminal case. This request was\\n\\ndenied by the federal district court on appellee's motion to\\n\\ndismiss. Because we hold that the state court judge's actions are\\n\\nshielded from this attack by the doctrine of judicial immunity, we\\n\\naffirm.\\n\\n BACKGROUND1\\n\\n In 2013, Zenon was at the Springfield District Court for\\n\\nthe Commonwealth of Massachusetts (\\\"Springfield court\\\"), attending\\n\\nto some driving charges unrelated to this case.2 While there, he\\n\\nwound up getting into an altercation with two court security\\n\\nofficers who, according to Zenon, attacked him without\\n\\nprovocation, all the while \\\"making inappropriate comments to him\\n\\nregarding his ethnicity.\\\" As Zenon tells it, one of the officers,\\n\\nAlexander Sierra, a former member of the Springfield Police\\n\\n\\n 1 As is required in reviewing a ruling on a Rule 12(b)(6)\\nmotion to dismiss, we rely on the factual account set forth in\\nZenon's amended complaint, unless otherwise noted. Schatz v.\\nRepublican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)\\n(instructing us to \\\"take the complaint's well-pled (i.e., non-\\nconclusory, non-speculative) facts as true . . . .\\\").\\n\\n 2 We note the exact date of the incident is not in the record.\\n\\n\\n - 2 -\\n\\fDepartment, already had a reputation around the courthouse for\\n\\nviolence. When the scuffle ended, Zenon found himself charged and\\n\\narraigned on two counts of assault and battery on the officers.\\n\\n Based on Zenon's attorney's investigation of the\\n\\nincident, Zenon filed a notice of intent to assert the affirmative\\n\\ndefense of self-defense. To get more information with which to\\n\\nbolster his case, Zenon subpoenaed administrative records from the\\n\\nSpringfield court, seeking all written incident reports authored\\n\\nby Officer Sierra. In response to the subpoena, the records were\\n\\nfiled with the court and delivered in due course to appellee\\n\\nAssociate Justice Margaret Guzman (\\\"Judge Guzman\\\"), the judge\\n\\noverseeing Zenon's criminal case.\\n\\n Protective order\\n\\n On July 29, 2015, Judge Guzman, following a chambers\\n\\nconference, turned over Officer Sierra's trial incident reports\\n\\nfor the preceding two years, and ordered the Commonwealth to\\n\\nproduce Springfield Police Department reports involving Officer\\n\\nSierra for the same two-year period.3 But she released the records\\n\\nto defense counsel with restrictions, making the documents subject\\n\\nto a part written/part oral protective order. The written ruling\\n\\nwas encapsulated in a pre-printed order entitled \\\"PROTECTIVE ORDER\\n\\n\\n 3 The records indicated that Officer Sierra reported using\\nforce against twenty-three individuals, and that an additional\\nperson had filed a complaint of excessive force against him with\\nthe police department.\\n\\n\\n - 3 -\\n\\fFOR DEFENSE COUNSEL.\\\"4 The written order, amongst other things,\\n\\npermitted defense counsel to review the \\\"presumptively privileged\\\"\\n\\nrecords for purposes of preparing for trial, but prohibited her,\\n\\nwithout prior court approval, from disclosing any of the\\n\\ninformation to anyone, including Zenon or her investigator (but\\n\\nnot including colleagues). It also forbade her from contacting\\n\\nany of the individuals named in the reports without court\\n\\npermission. From the bench, Judge Guzman likewise allowed the\\n\\nCommonwealth access to the records with similar restrictions.\\n\\n As Zenon's criminal case proceeded, his counsel began to\\n\\nfeel hampered by the prohibitions imposed by the court and\\n\\nrepeatedly petitioned to have them lifted. Prior to receiving the\\n\\nrecords, defense counsel, on her own, had investigated other\\n\\nalleged episodes involving Officer Sierra and had identified and\\n\\ncontacted several participants and witnesses to discuss their own\\n\\nexperiences with him. Also, rumors abounded about other Officer\\n\\nSierra dust-ups but the protective order thwarted counsel's\\n\\nefforts to dig deeper. By September 2015, though, she had partial\\n\\n\\n\\n\\n 4\\n The authorized form for the protective order may be found\\njust after the Reporter's Notes that follow the text of Rule 17 in\\nMassachusetts' volume of court rules. The form includes spaces\\nfor the docket number, the defendant's name, the judge and defense\\ncounsel's signatures, the date, and the defense counsel's address\\nand bar number. All other provisions, including the specific\\nrestrictions, are part of the pre-printed form.\\n\\n\\n - 4 -\\n\\fsuccess in convincing Judge Guzman to vacate the protective order\\n\\nas to at least two incidents,5 but that was it.\\n\\n On September 23, 2015, Zenon filed a petition for\\n\\nextraordinary relief with the Supreme Judicial Court of\\n\\nMassachusetts (the \\\"SJC\\\") to stay his criminal trial and vacate\\n\\nthe protective order. This petition was denied without a hearing\\n\\nby a single justice, and Zenon pressed an appeal to the full court.\\n\\nA few days later, on October 5, 2015, Zenon entered a plea on the\\n\\nassault and battery charges: Zenon was not required to stipulate\\n\\nto the conduct alleged, and the charges were continued without a\\n\\n\\n\\n\\n 5As described in Zenon's amended complaint, in one incident\\na pregnant African-American teenager was crying in the hallway\\noutside the courtroom where her boyfriend was being detained.\\nAfter she failed to compose herself on instructions from Officer\\nSierra, he threw her face down on the floor and placed his knee on\\nher back, then pulled her upright and pushed her against the wall.\\nHe proceeded to hit her repeatedly in the face. Several hours\\nlater, the young woman miscarried her baby. She was later charged\\nwith assault and battery on Officer Sierra. This episode was\\nconfirmed by several bystanders, including an attorney.\\n The second incident also involved an African-American woman\\nwho had appeared before a judge on a child support matter. The\\njudge instructed her to file some paperwork with the clerks'\\noffice; however, at the clerks' office she was told to return to\\nthe courtroom to get her file. She was intercepted at the\\ncourtroom door by a court security officer and told that she was\\ntrespassing. Officer Sierra followed her back to the clerks'\\noffice where she was explaining the situation to the clerk.\\nOfficer Sierra grabbed her, threw her to the ground, and handcuffed\\nher. She too was charged with assault and battery on Officer\\nSierra.\\n\\n - 5 -\\n\\ffinding of guilt. But by its terms, the protective order remained\\n\\nin effect.6\\n\\n Following the disposition of Zenon's criminal case,\\n\\nother individuals who had been charged with assault and battery\\n\\nunder similar circumstances, as well as attorneys involved in other\\n\\ncourthouse incidents, contacted Zenon's attorney seeking\\n\\ninformation about Officer Sierra. Although Zenon had authorized\\n\\nhis attorney to provide these people with relevant information, he\\n\\nand his attorney had been prevented by the protective order from\\n\\nsharing any information about Officer Sierra.\\n\\n On February 4, 2016, a full panel of the SJC denied\\n\\nZenon's request to further consider his petition to vacate the\\n\\nprotective order. Zenon v. Commonwealth, 44 N.E.3d 858, 859 (Mass.\\n\\n2016). Summarizing the prior proceedings, the court wrote:\\n\\n\\\"[Zenon] sought certain third-party records in support of his claim\\n\\nthat the alleged victim was in fact the first aggressor.\\\" Id. at\\n\\n859 (citing Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005)).\\n\\nThe court continued: \\\"The judge issued the protective order\\n\\nconcerning these records, apparently following the Dwyer\\n\\n\\n\\n\\n 6 Paragraph Six of the protective order reads in part:\\n\\\"Notwithstanding the entry of any order terminating the case, this\\nProtective Order shall remain in effect unless terminated by entry\\nof a Court order.\\\"\\n\\n\\n - 6 -\\n\\fprotocol.\\\" Id. (citing Commonwealth v. Dwyer, 859 N.E.2d 400,\\n\\n414-19 (2006)).7\\n\\n In explicating its decision, the SJC focused on the\\n\\nprocedure available to Zenon when he initially filed his motion\\n\\n(that is, while the criminal charges were still pending). The\\n\\ncourt concluded that it did not need to exercise its \\\"extraordinary\\n\\npower of general superintendence under c. 211, §3\\\" to intervene in\\n\\nthe workings of the Springfield court because Zenon had \\\"an\\n\\nadequate alternative remedy\\\" in the normal trial and appellate\\n\\ncourt processes. Id. at 859-60 (citations and internal quotation\\n\\nmarks omitted).\\n\\n Had Zenon been tried and convicted of any offense, he\\n could have challenged the protective order on direct\\n appeal. . . . If Zenon believes that the records have\\n any continuing significance now that the charges have\\n been resolved, he could move in the District Court for\\n termination or modification of the protective order and,\\n if such a motion is denied, appeal in the ordinary course\\n from that ruling.\\n\\nId. at 859.\\n Federal litigation\\n\\n Opting not to follow any of the SJC's suggested pathways,\\n\\nZenon filed a complaint in federal court on July 14, 2016, seeking\\n\\na declaratory judgment that the protective order violates his First\\n\\nAmendment rights, pursuant to 42 U.S.C. § 1983, and naming as\\n\\ndefendants Judge Guzman and the District Court Division of the\\n\\n\\n 7 We'll talk about the Dwyer protocol, announced by the SJC\\nin 2006, in our analysis section.\\n\\n\\n - 7 -\\n\\fMassachusetts Trial Court.8 Judge Guzman responded with a Rule 12\\n\\nmotion to dismiss, making three principal arguments: that she was\\n\\nprotected from suit by sovereign immunity, pursuant to the Eleventh\\n\\nAmendment; that the federal court was barred from hearing the suit\\n\\nbased on the doctrines of Younger and Rooker-Feldman abstention;\\n\\nand that the complaint was barred by collateral estoppel. Zenon\\n\\nthen amended his complaint, dropping the Commonwealth Trial Court\\n\\nas a defendant. In due course a magistrate judge analyzed the\\n\\namended complaint and Judge Guzman's motion, and recommended that\\n\\nJudge Guzman's motion be denied. Thereafter, in a written\\n\\nobjection to the report and recommendation, Judge Guzman took the\\n\\nopportunity to add a new argument to her motion: judicial immunity.\\n\\nIn the end, after citing the confusion caused by Zenon's amendment\\n\\nto his complaint mid-motion practice, as well as \\\"considerations\\n\\nof comity,\\\" the district judge permitted Judge Guzman's lately-\\n\\nadded argument, and ruled that it carried the day, declining to\\n\\nadopt the report and recommendation and dismissing Zenon's claims.9\\n\\n\\n 8 And we are mindful that § 1983 does not mandate exhaustion\\nof state court remedies. See, e.g., Steffel v. Thompson, 415 U.S.\\n452, 472–73 (1974) (\\\"When federal claims are premised on [§ 1983]\\n-- as they are here -- we have not required exhaustion of state\\njudicial or administrative remedies, recognizing the paramount\\nrole Congress has assigned to the federal courts to protect\\nconstitutional rights.\\\").\\n\\n 9 The court also concluded that both the Younger and Rooker-\\nFeldman abstention doctrines, though an imperfect fit, posed a bar\\nto relief, holding that they \\\"cast a shadow over Plaintiff's case.\\\"\\nAlthough Zenon challenges this finding on appeal, because we rest\\n\\n\\n - 8 -\\n\\f ANALYSIS\\n\\n Zenon's appeal (as now distilled) brings the matter to\\n\\nour door for an examination of whether Judge Guzman is protected\\n\\nfrom this lawsuit by judicial immunity. First, some parameters\\n\\nfor our review.\\n\\n With respect to a motion to dismiss, we take as true the\\n\\nallegations of the complaint, as well as any inferences we can\\n\\ndraw from it in the plaintiff's favor. Fed. R. Civ. P. 12(b)(6).\\n\\nTo assess the adequacy of the complaint, our circuit has instructed\\n\\nthat the review should be handled like this: first, \\\"isolate and\\n\\nignore statements in the complaint that simply offer legal labels\\n\\nand conclusions or merely rehash cause-of-action elements[,]\\\" then\\n\\n\\\"take the complaint's well-pled (i.e., non-conclusory, non-\\n\\nspeculative) facts as true, drawing all reasonable inferences in\\n\\nthe pleader's favor, and see if they plausibly narrate a claim for\\n\\nrelief.\\\" Schatz v. Republican State Leadership Comm., 669 F.3d\\n\\n50, 55 (1st Cir. 2012) (citing Ocasio–Hernández v. Fortuño–Burset,\\n\\n640 F.3d 1, 12 (1st Cir. 2011)) (discussing, among other cases,\\n\\nAshcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.\\n\\nTwombly, 550 U.S. 544 (2007)). \\\"Plausible, of course, means\\n\\nsomething more than merely possible, and gauging a pleaded\\n\\nsituation's plausibility is a 'context-specific' job that compels\\n\\n\\n\\nour ruling on the doctrine of judicial immunity, we leave\\nabstention on the bookshelf for now.\\n\\n\\n - 9 -\\n\\fus 'to draw on' our 'judicial experience and common sense.'\\\"\\n\\nSchatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).\\n\\n When analyzing a defense of judicial immunity, our\\n\\nreview is much the same. \\\"Affirmative defenses . . . may be raised\\n\\nin a motion to dismiss . . ., provided that the facts establishing\\n\\nthe defense [are] clear 'on the face of the plaintiff's\\n\\npleadings.'\\\" Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-\\n\\n14 (1st Cir. 2009) (quoting Trans–Spec Truck Serv., Inc. v.\\n\\nCaterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008)) (alterations\\n\\nin original). And we are mindful that we may consider \\\"not only\\n\\nthe complaint but also matters fairly incorporated within it and\\n\\nmatters susceptible to judicial notice\\\" without converting the\\n\\nmotion to dismiss into a motion for summary judgment. In re\\n\\nColonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).\\n\\nUltimately, when the facts establishing the defense appear within\\n\\nthe four corners of the complaint, and upon review there is \\\"no\\n\\ndoubt\\\" that the plaintiff's claim is barred by the raised defense,\\n\\ndismissal is appropriate. Blackstone Realty LLC v. F.D.I.C., 244\\n\\nF.3d 193, 197 (1st Cir. 2001) (quotation marks omitted).\\n\\n In undertaking this process, we have considered hearing\\n\\ntranscripts from the Springfield court, attached as exhibits to\\n\\nthe amended complaint. Schatz, 669 F.3d at 55-56 (noting that the\\n\\ncourt may consider, on a motion to dismiss, documents attached to\\n\\nor incorporated into the complaint).\\n\\n\\n - 10 -\\n\\f Now, with the rules of play in place, we proceed to\\n\\nconsider de novo whether, based on the facts pled, judicial\\n\\nimmunity bars Zenon's claims. When all is said and done, we\\n\\ndetermine that Judge Guzman is entitled to immunity, as we explain.\\n\\n A primer on judicial immunity\\n\\n The time-honored doctrine of judicial immunity was set\\n\\nforth long ago by the Supreme Court in Bradley v. Fisher, wherein\\n\\nthe Court observed, complete with requisite references to England\\n\\nand the king, that judicial immunity \\\"obtains in all countries\\n\\nwhere there is any wellordered system of jurisprudence.\\\" 80 U.S.\\n\\n(13 Wall.) 335, 347 (1871). Permitting judges to be questioned on\\n\\ntheir rulings, the Court said, would lead to \\\"continual\\n\\ncalumniations\\\" and nothing short of the \\\"subversion of all\\n\\njustice.\\\" Id. at 348 (internal quotation marks and citation\\n\\nomitted). The breadth of the protection is fulsome, shielding\\n\\njudges even when their actions are malicious, corrupt, mistaken,\\n\\nor taken in bad faith; its purpose not to buffer bad judges but\\n\\n\\\"for the benefit of the public, whose interest it is that the\\n\\njudges should be at liberty to exercise their functions with\\n\\nindependence and without fear of consequences.\\\" Pierson v. Ray,\\n\\n386 U.S. 547, 554 (1967) (internal quotation marks and citation\\n\\nomitted). Therefore, it is an axiom of black letter law that when\\n\\na judge carries out traditional adjudicatory functions, he or she\\n\\nhas absolute immunity for those actions. Goldstein v. Galvin, 719\\n\\n\\n - 11 -\\n\\fF.3d 16, 25 (1st Cir. 2013). And, the Supreme Court has recognized\\n\\nthat judicial immunity applies in the context of suits -- like\\n\\nZenon's -- that are brought under § 1983. Pierson, 386 U.S. at\\n\\n554-55.\\n\\n To determine if a judge is entitled to the full\\n\\nprotection of the doctrine's deflector shield,10 the Supreme Court\\n\\nhas assessed whether the judge's act was one normally performed by\\n\\na judge, and whether the parties were dealing with the judge in\\n\\nhis or her judicial capacity. Stump v. Sparkman, 435 U.S. 349,\\n\\n362 (1978). Judicial immunity is appropriate unless a judge is\\n\\ncarrying out an activity that is not adjudicatory. Forrester v.\\n\\nWhite, 484 U.S. 219, 227-28 (1988) (\\\"Administrative decisions,\\n\\neven though they may be essential to the very functioning of the\\n\\ncourts, have not similarly been regarded as judicial acts.\\\"). The\\n\\nForrester Court observed that \\\"it was the nature of the function\\n\\nperformed, not the identity of the actor who performed it, that\\n\\ninformed our immunity analysis.\\\" Id. at 229.\\n\\n The Supreme Court elaborated further in Mireles v. Waco,\\n\\nexplaining that immunity is overcome only in cases where a judge\\n\\nis carrying out a nonjudicial action, or in instances where a judge\\n\\ntakes an action, though seemingly \\\"judicial in nature,\\\" that is\\n\\n\\n 10 And it's important to note: absolute judicial immunity\\nmeans not just immunity from damages, but immunity from suit\\naltogether. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing\\nMitchell v. Forsyth, 472 U.S. 511, 526 (1985)).\\n\\n\\n - 12 -\\n\\f\\\"in the complete absence of all jurisdiction.\\\" 502 U.S. 9, 11-12\\n\\n(1991) (per curiam) (citing Forrester, 484 U.S. at 227-29; Stump,\\n\\n435 U.S. at 356-60; Bradley, 80 U.S. (13 Wall.) at 347).11\\n\\n\\\"Accordingly,\\\" the Mireles Court instructed, \\\"as the language in\\n\\nStump indicates, the relevant inquiry is the 'nature' and\\n\\n'function' of the act, not the act itself.\\\" 502 U.S. at 13 (quoting\\n\\nStump, 435 U.S. at 362).\\n\\n In accordance with this analytic tradition, we look\\n\\nclosely at Judge Guzman's actions -- \\\"the function performed\\\" --\\n\\nin issuing and maintaining the protective order. In Zenon's eyes,\\n\\nshe was -- plain and simple -- a gatekeeping administrator for the\\n\\ncourt's personnel records. But as Judge Guzman sees things, she\\n\\nwas performing (in the words of the district court) \\\"the bread-\\n\\nand-butter adjudicatory function of a judicial officer\\\" --\\n\\nrefereeing a discovery dispute.\\n\\n The battle of the procedural rules\\n\\n The parties each attempt to justify their position by\\n\\ndrawing our attention to the state procedural rules they relied on\\n\\n\\n\\n\\n 11\\n In such circumstances, a state actor who happens to be a\\njudge and who violates the Constitution while acting as an\\nadministrator might properly be subjected to suit under 42 U.S.C.\\n§ 1983. In re Justices of Supreme Court, 695 F.2d 17, 21 (1st\\nCir. 1982). But as then circuit-judge Stephen Breyer explained,\\n\\\"§ 1983 does not provide relief against judges acting purely in\\ntheir adjudicative capacity, any more than, say, a typical state's\\nlibel law imposes liability on a postal carrier or telephone\\ncompany for simply conveying a libelous message.\\\" Id. at 22.\\n\\n\\n - 13 -\\n\\fin connection with the contested state court rulings. Zenon, in\\n\\nhis amended complaint, asserts that he made a request for\\n\\nadministrative court records pursuant to Rule 2(2) of the Uniform\\n\\nRules on Subpoenas to Court Officials, which, according to Zenon,\\n\\ngoverns public access to these records. Mass. Trial Court Rule\\n\\nIX(2)(2). This rule provides that an \\\"official keeper of the\\n\\nrecords of the Trial Court shall provide an attested copy of court\\n\\nrecords or administrative records to a party who requests . . .\\n\\nsuch records . . . .\\\" Mass. Trial Court Rule IX(2)(2). As he\\n\\ntells us, he sought internal records from the Trial Court's\\n\\nExecutive Office; records generated pursuant to the administrative\\n\\nfunctioning of the court and completely unconnected to any criminal\\n\\nor civil proceeding before the court. Continuing on, he says that\\n\\nthe production of this material could not properly be viewed as a\\n\\ndiscovery motion because the state's criminal procedural rule,\\n\\nRule 14, only applies to material in \\\"the possession, custody or\\n\\ncontrol of the prosecutor, or persons under the prosecutor's\\n\\ndirection and control . . . .\\\" Mass. R. Crim. P. 14(a)(1)(A).\\n\\nAnd clearly, Zenon argues, the Massachusetts trial court records\\n\\nare not subject to the prosecutor's direction or control. Again,\\n\\nto put it simply, Zenon urges that in considering his request for\\n\\ncourt documents, Judge Guzman necessarily and exclusively had to\\n\\nhave been exercising administrative authority over administrative\\n\\nrecords.\\n\\n\\n - 14 -\\n\\f In response to Zenon's document request, Judge Guzman\\n\\nissued a pre-printed stock order which cites to Rule 17(a)(2) of\\n\\nthe Massachusetts Rules of Criminal Procedure. This rule\\n\\nauthorizes the clerk to issue a summons to a person \\\"to produce\\n\\nthe books, papers, documents, or other objects designated therein\\n\\n. . . within a reasonable time prior to the trial or prior to the\\n\\ntime when they are to be offered in evidence . . . .\\\" Mass. R.\\n\\nCrim. P. 17(a)(2). But notwithstanding the rule number referenced\\n\\nin the order, Judge Guzman explains in her brief that, contrary to\\n\\nZenon's assertions, her protective order is best characterized as\\n\\na garden-variety discovery order, issued in accordance with Rule\\n\\n14, which governs pretrial discovery and procedures, including\\n\\nprotective orders. Mass. R. Crim. P. 14(a)(6).\\n\\n Ultimately, we conclude that whatever rule got\\n\\nreferenced is not, at least in this instance, determinative of the\\n\\nquestion we must answer here: what is the essential character of\\n\\nJudge Guzman's actions in issuing the protective order?12\\n\\nRemember, as the Supreme Court instructed in Stump and Mireles,\\n\\n\\n\\n\\n 12\\n While the records themselves may be administrative, it is\\nthe judge's action of overseeing their production with which we\\nare concerned. Mass. Trial Court Rule IX is described as a\\ndiscovery rule by the Massachusetts Practice Series. 49 Mass.\\nPrac., Discovery § 1:31. In this case, we refrain from opining as\\nto whether requests to the trial court made pursuant to the Uniform\\nRules on Subpoenas to Court Officials may always be considered\\njudicial in character, or may sometimes be classified as\\nadministrative.\\n\\n\\n - 15 -\\n\\f\\\"the relevant inquiry is the 'nature' and 'function' of the act .\\n\\n. . . In other words, we look to the particular act's relation to\\n\\na general function normally performed by a judge . . . .\\\" Mireles,\\n\\n502 U.S. at 13 (quoting Stump, 435 U.S. at 362). Accordingly, we\\n\\nturn our attention to the record to better gauge Judge Guzman's\\n\\nactions.\\n\\n Zenon v. Guzman\\n\\n We begin by taking judicial notice of the SJC's\\n\\nFebruary 4, 2016 order resulting from Zenon's interlocutory appeal\\n\\nwhich we find relevant to our inquiry. Zenon, 44 N.E.3d 858. As\\n\\nstated earlier, the SJC mentioned two cases of import to our\\n\\nconsideration: one, Adjutant established the standard to be\\n\\nfollowed by a trial judge in determining what evidence of a\\n\\nvictim's prior aggressive behavior can be admitted at trial to\\n\\nbolster a defendant's claim of self-defense. 824 N.E.2d at 10-\\n\\n11. The other, Dwyer, refined the state's protocols for granting\\n\\ndefendants pre-trial access to statutorily privileged third-party\\n\\nrecords of witnesses in criminal proceedings. 859 N.E.2d at 414.\\n\\nPursuant to the protocol, \\\"presumptively privileged records\\\" are\\n\\nto be held by the court under seal, and reviewed only by defense\\n\\ncounsel after counsel has entered into \\\" a stringent protective\\n\\norder\\\" containing \\\"nondisclosure provisions.\\\" Id. at 418-19.\\n\\nTherefore, in explaining its decision to deny Zenon appellate\\n\\nrelief, the SJC made clear that it understood Zenon's record\\n\\n\\n - 16 -\\n\\fsubpoena as a request for an Adjutant hearing. Equally as pellucid\\n\\nis the SJC's understanding of Judge Guzman's in limine hearing as\\n\\na procedure in implementation of the Dwyer protocols. In\\n\\nMassachusetts, both of these matters are routine pretrial\\n\\nadjudicatory proceedings and generally subject to direct appellate\\n\\nreview. See Commonwealth v. Chambers, 989 N.E.2d 483, 493-94\\n\\n(Mass. 2013) (ordering a new trial after trial court excluded\\n\\nevidence of victim's prior act of violence); Rodriguez v.\\n\\nCommonwealth, 871 N.E.2d 486, 487 (Mass. 2007) (noting that post-\\n\\nconviction relief is available for defendant who was unable to\\n\\nobtain third party documents at trial).\\n\\n How the SJC treats such hearings is, for us, strong\\n\\nevidence of the nature and function of Judge Guzman's actions.\\n\\nSee Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994) (noting\\n\\nthat the \\\"Supreme Judicial Court, not this court, is the\\n\\nauthoritative interpreter of state statutes\\\").13\\n\\n Transcripts\\n\\n Further evidence of how best to characterize Judge\\n\\nGuzman's actions lies in the transcripts from the proceedings\\n\\n\\n 13\\n Relatedly, in considering whether a judge's contested\\naction \\\"is a function normally performed by a judge,\\\" the Stump\\nCourt made an examination of \\\"the expectations of the parties,\\ni.e., whether they dealt with the judge in his judicial capacity.\\\"\\n435 U.S. 362. The way that the SJC understands the procedural\\nrules governing the parties dispute surely bears on the\\n\\\"expectations of the parties\\\" for purposes of determining the\\nnature and function of Judge Guzman's actions here.\\n\\n\\n - 17 -\\n\\fbelow.14 In her interactions with the parties, she specifically\\n\\ntalks about Adjutant, repeatedly expressing her concern about the\\n\\nrelevance and ultimate admissibility of the evidence that may be\\n\\nunearthed through defense counsel's inquiries into the Officer-\\n\\nSierra incidents.\\n\\n For instance, on July 29, 2015, Judge Guzman begins\\n\\nthe on-the-record hearing by describing the session as a\\n\\nmemorialization of \\\"my first conference with both counsel,\\\" about\\n\\nissues discussed in chambers. She continues:\\n\\n [T]he first thing I did was review the\\n documents that were brought in by -- after the\\n defendant's request for unredacted and full\\n copies of the record potentially related to\\n the Adjutant issues that were filed. . . . I\\n reviewed those records and without my making\\n a determination of whether or not there is any\\n admissibility in what their use may be for\\n I've determined that a copy of all the\\n unredacted records will be provided to both\\n counsel and both counsel will endorse a\\n protective order. . . . [I]t was indicated to\\n defense that she may review all of these\\n records and at any time wishes -- if wishing\\n to discuss this matter with an investigator or\\n pursue inquiry through any of the information\\n contained in the records that she will notify\\n the Court through the clerk ex parte with a\\n motion for good cause to either inform[] both\\n parties of the contained information or to act\\n on that information.\\n\\nTr., July 29, 2015.\\n\\n\\n\\n\\n 14\\n And to refresh the reader's recollection, the transcripts\\nwere attached to Zenon's amended complaint.\\n\\n\\n - 18 -\\n\\f On September 14, 2015, Judge Guzman tells counsel that\\n\\nshe wants to hear oral argument that morning concerning: \\\"The\\n\\nquestion about the Adjutant material, not just the access issue\\n\\nbut whether or not we are going to -- whether or not the request\\n\\nis to use any information, call any witnesses . . . .\\\" Tr., Sept.\\n\\n14, 2015. When both attorneys indicate that they are not prepared\\n\\nto go forward, Judge Guzman and defense counsel engage in a\\n\\ncolloquy about whether there will be a \\\"pre voir dire argument on\\n\\nthat issue.\\\" Id. Judge Guzman goes on to express her concern\\n\\nabout the admissibility of the evidence that defense counsel is\\n\\ntrying to gather: \\\"So there is [] really a very narrow area of\\n\\nadmissibility that we are focused on, and the first is whether or\\n\\nnot there is a valid defense claim that's been raised, and second,\\n\\nwhether there is a question as to who is the first aggressor.\\\"\\n\\nId.\\n\\n Additionally, Judge Guzman addresses her obligation to\\n\\nbalance the privacy rights of those members of the community who\\n\\nmay be identified in the Officer-Sierra incident reports with\\n\\nZenon's rights to prepare his defense to criminal charges. These\\n\\nconcerns, she noted, encompassed Officer Sierra's interests in\\n\\nmaintaining the confidentiality of his personnel and medical\\n\\nrecords. Tr., Aug. 26, 2015. Unmistakably then, Dwyer, though\\n\\nnot expressly mentioned, animated Judge Guzman's thinking, and the\\n\\n\\n\\n\\n - 19 -\\n\\fstock protective order she issued reflects Dwyer's instructive\\n\\ndirectives.15\\n\\n We believe the issues addressed by Judge Guzman go to\\n\\nthe heart of a judge's role in regulating discovery and ruling on\\n\\nthe admissibility of evidence in a criminal trial. See Fed. R.\\n\\n\\n 15\\n For example, on August 26, 2015, the parties convened, and\\nJudge Guzman explained her work in the preceding weeks:\\n\\n There is very little case law in the area we are in,\\n which is a public display of official capacity action\\n and request to use records which are there is no grounds\\n to believe that there is an official determination of\\n first aggressor behavior by Officer Sierra. I have no\\n information that anyone has []ever made a formal\\n complaint against Officer Sierra alleging first\\n aggressor behavior that would qualify the Adjutant.\\n\\nTr., Aug. 26, 2015. During the same hearing, Judge Guzman cautions\\nZenon's attorney about talking to other people, in connection with\\nOfficer-Sierra incidents, because those other people might be\\nrepresented by counsel.\\n\\n Later Judge Guzman addresses the protective order\\ndirectly, allowing the order to be loosened to permit defense\\ncounsel to contact two people who had expressly waived\\nconfidentiality. Here she expresses broader concerns:\\n\\n Once the persons who are involved in the incidents make\\n a determination that they don't wish to have the\\n protection of the Court, the court is going to allow the\\n motion to expand. In fact, the protective order will\\n not be involved in those incidents. . . . The protective\\n order remains as to the other incidents that -- where is\\n no determination that the persons who are involved have\\n agreed to waive any confidentiality of any protection of\\n the courts. . . . And that is the fourth motion to\\n modify the protective order, and I think that covers all\\n the issues in that.\\n\\nId.\\n\\n\\n\\n - 20 -\\n\\fCrim. P. 12 and 16(d)(1); Mass. R. Crim. P. 17(a)(2); Nystedt v.\\n\\nNigro, 700 F.3d 25, 30-31 (1st Cir. 2012); United States v. Cianci,\\n\\n378 F.3d 71, 100-01 (1st Cir. 2004); Dwyer, 859 N.E.2d at 418;\\n\\nAdjutant, 824 N.E.2d at 12 (noting that trial judges are afforded\\n\\ngreat discretion \\\"in weighing the probative value of evidence\\n\\nagainst any prejudicial effect it might have on a jury\\\"). Although\\n\\nwe have been supplied with over a hundred pages of transcripts, we\\n\\nneed dig no further to conclude that Judge Guzman's concerns, and\\n\\nresulting rulings, were inarguably judicial in both their \\\"nature\\\"\\n\\nand their \\\"function.\\\"16 Mireles, 502 U.S. at 13 (quoting Stump,\\n\\n435 U.S. at 362).\\n\\n CONCLUSION\\n\\n For the reasons stated, we affirm the district court's\\n\\ndecision. Each party to bear its own costs.\\n\\n\\n\\n\\n 16Indeed, as we've already pointed out, in considering whether\\na judge's contested action \\\"is a function normally performed by a\\njudge,\\\" the Supreme Court in Stump looked at \\\"the expectations of\\nthe parties, i.e., whether they dealt with the judge in his\\njudicial capacity.\\\" 435 U.S. 362. As we see it, the parties'\\nexpectations here, which Stump makes relevant, are evident.\\nZenon's attorney requested the records to aid in preparing Zenon's\\nself-defense claim in the pending criminal case. The records were\\nreleased, subject to a protective order, which was announced during\\nthe course of an adversarial hearing in the courtroom. Subsequent\\nhearings were held, during which counsel argued that the scope of\\nthe protective order should be limited -- discussions in which the\\njudge and counsel focused on the potential admissibility of\\nevidence, pursuant to Massachusetts law. These circumstances\\ndemonstrate that counsel was dealing with the judge in her \\\"bread-\\nand-butter\\\" judicial capacity.\\n\\n\\n - 21 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1967,"cells":{"id":{"kind":"number","value":4620482,"string":"4,620,482"},"name":{"kind":"string","value":"Toribio ROJAS-MEDINA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee."},"name_abbreviation":{"kind":"string","value":"Rojas-Medina v. United States"},"decision_date":{"kind":"string","value":"2019-05-16"},"docket_number":{"kind":"string","value":"18-1150P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Selya, Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"SELYA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1150\\n\\n TORIBIO ROJAS-MEDINA,\\n\\n Petitioner, Appellant,\\n\\n v.\\n\\n UNITED STATES OF AMERICA,\\n\\n Respondent, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Franco L. Pérez-Redondo, Research & Writing Attorney, with\\nwhom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-\\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\\nSection, were on brief, for petitioner.\\n Antonio L. Pérez-Alonso, Assistant United States Attorney,\\nwith whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and\\nMariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, were on brief, for respondent.\\n\\n\\n May 16, 2019\\n\\f SELYA, Circuit Judge. In Roe v. Flores-Ortega, 528 U.S.\\n\\n470 (2000), the Supreme Court held that, as a matter of\\n\\nconstitutional law, a defense attorney has a duty to consult with\\n\\na client about an appeal either when a particular defendant\\n\\nreasonably demonstrated to the attorney that he was interested in\\n\\nappealing or when the circumstances are such that a rational\\n\\ndefendant would want to appeal. See id. at 480. The Court went\\n\\non to hold that when an attorney violates this duty, a presumption\\n\\nof prejudice arises. See id. at 483. The appeal at hand requires\\n\\nus, for the first time, to apply the Flores-Ortega presumption of\\n\\nprejudice in circumstances in which the defendant has previously\\n\\nexecuted a plea agreement containing a waiver-of-appeal provision.\\n\\nMindful of the teachings of both Flores-Ortega and Garza v. Idaho,\\n\\n139 S. Ct. 738 (2019), we reverse the district court's dismissal\\n\\nof petitioner-appellant Toribio Rojas-Medina's petition for post-\\n\\nconviction relief and direct the district court, on remand, to\\n\\nafford him an appropriate opportunity to file a timely notice of\\n\\nappeal.\\n\\nI. BACKGROUND\\n\\n The petitioner is a monolingual Spanish speaker who is\\n\\na native and citizen of the Dominican Republic. On November 23,\\n\\n2015, a federal grand jury sitting in the District of Puerto Rico\\n\\nreturned a three-count indictment charging him with unlawfully\\n\\ntransporting noncitizens (count 1), unlawful reentry into the\\n\\n\\n - 2 -\\n\\fUnited States by a deported noncitizen (count 2), and failure to\\n\\nheave to a vessel (count 3). See 8 U.S.C. §§ 1324(a)(1)(A)(i),\\n\\n1326(b)(1); 18 U.S.C. § 2237(a)(1). Roughly three months later,\\n\\nthe petitioner entered into a plea agreement (the Agreement),\\n\\nwherein he agreed to plead guilty to count 2 (unlawful reentry\\n\\ninto the United States by a deported noncitizen). In exchange,\\n\\nthe government agreed to dismiss the other two counts. The\\n\\nAgreement memorialized, inter alia, the parties' stipulation to a\\n\\ntotal offense level (TOL) of 21, but contained no stipulation as\\n\\nto the petitioner's criminal history category (CHC).\\n\\n In a section of the Agreement entitled \\\"SENTENCING\\n\\nRECOMMENDATION,\\\" the parties agreed that they would \\\"recommend a\\n\\nsentence at the lower end of the applicable Guideline Sentencing\\n\\nRange.\\\" The parties further agreed that the petitioner \\\"may\\n\\nrequest that [his] sentence run concurrently with any pending state\\n\\nsentence or state revocation sentence that may be imposed as a\\n\\nresult of the current criminal conduct,\\\" and \\\"may also argue for\\n\\na downward departure\\\" on the basis \\\"that his [CHC] substantially\\n\\noverrepresent[ed] the seriousness of [his] criminal conduct or the\\n\\nlikelihood that [he] will commit other crimes.\\\" Of particular\\n\\npertinence for present purposes, the Agreement contained a waiver-\\n\\nof-appeal provision under which the petitioner surrendered the\\n\\nright to appeal his conviction and sentence, \\\"provided that [he\\n\\nwas] sentenced in accordance with the terms and conditions set\\n\\n\\n - 3 -\\n\\fforth in the Sentence Recommendation provisions of [the\\n\\nAgreement].\\\"\\n\\n A probation officer prepared the presentence\\n\\ninvestigation report (PSI Report). Consistent with the Agreement,\\n\\nthe probation officer recommended a TOL of 21. She assessed the\\n\\npetitioner eight criminal history points, placing him in CHC IV.\\n\\nThe recommended guideline sentencing range (GSR) was 57 to 71\\n\\nmonths.\\n\\n Neither party objected to the guideline calculations\\n\\nlimned in the PSI Report. The petitioner's then-counsel (whom we\\n\\nshall call \\\"trial counsel\\\") filed a sentencing memorandum in which\\n\\nhe urged the district court to vary downward and sentence the\\n\\npetitioner based on a CHC of III. Specifically, trial counsel\\n\\nsought a sentence of 46 months, which fell at the bottom of the\\n\\nGSR for a TOL of 21 and a CHC of III. Trial counsel also requested\\n\\nthat the sentence \\\"run concurrently with any pending state\\n\\nsentence.\\\"1\\n\\n Prior to sentencing, a different probation officer\\n\\napproached trial counsel, told him that the PSI Report had\\n\\nmiscalculated the petitioner's CHC, and said that two additional\\n\\n\\n\\n 1\\n The petitioner committed the current offense while on post-\\nrelease supervision in New York. Thus, he was concerned that he\\nmight be subject to additional state prison time if the New York\\nauthorities moved to revoke his supervision due to his federal\\noffense.\\n\\n\\n - 4 -\\n\\fcriminal history points would be added. These additional points\\n\\nserved to elevate the petitioner from CHC IV to CHC V.\\n\\n The district court convened the disposition hearing on\\n\\nMay 13, 2016. The court asked trial counsel whether he needed\\n\\nadditional time to prepare, given the change in the probation\\n\\nofficer's CHC calculation. Trial counsel said that he did not\\n\\nneed extra time, reasoning that \\\"by adding two additional points,\\n\\nit would only strengthen my position as to the overrepresentation\\n\\nof [the petitioner's] criminal history.\\\" He added that he would\\n\\nstill be able to pursue his request for a downward departure.2 He\\n\\nthen presented his argument for a 46-month sentence. The\\n\\ngovernment made clear that it was \\\"not objecting or arguing\\n\\nagainst\\\" such a sentence, which was \\\"discussed as part of the plea\\n\\nnegotiations.\\\" Rather, the government was \\\"standing by the\\n\\n[Agreement]\\\" and \\\"recommending a sentence at the lower end of the\\n\\napplicable guideline range based on a [TOL] of 21, according to\\n\\nthe [CHC] that the Court accepts.\\\"\\n\\n\\n\\n 2\\n It is evident that trial counsel was using the term\\n\\\"departure\\\" colloquially to include both downward departures and\\ndownward variances. Cf. United States v. Santini-Santiago, 846\\nF.3d 487, 489-90 (1st Cir. 2017) (explaining that departures may\\nonly be \\\"justified by reference to specified characteristics of\\nthe offense or the offender, or to an early disposition program,\\\"\\nwhereas variances may be justified by a much broader swath of\\nrationales, \\\"such as 'deterrence,' inducing 'respect for the law,'\\nand effective 'correctional treatment'\\\" (quoting 18 U.S.C.\\n§ 3553(a))). The word \\\"departure\\\" appears to have been given this\\nsame broad meaning in the Agreement.\\n\\n\\n - 5 -\\n\\f When all was said and done, the district court adopted\\n\\nthe probation officer's revised recommendation, assessed ten\\n\\ncriminal history points, and placed the petitioner in CHC V. Using\\n\\nthe agreed TOL of 21, the court set the GSR at 70 to 87 months.\\n\\nIt proceeded to impose a 70-month term of immurement to run\\n\\nconsecutively vis-á-vis any state sentence that might be imposed.\\n\\nTrial counsel immediately objected.\\n\\n Upon completion of the sentencing proceeding, trial\\n\\ncounsel had a two-minute conversation with the petitioner at the\\n\\ncourthouse cellblock. After this brief chat, the two never spoke\\n\\nagain. Judgment entered on May 13, 2016 — the same day that trial\\n\\ncounsel filed a so-called \\\"Motion to Reconsider Sentence.\\\" The\\n\\nmotion papers contended that the 70-month sentence was \\\"extremely\\n\\nharsh\\\" and \\\"greater than necessary to fulfill the purposes of\\n\\nsentencing under [18 U.S.C. §] 3553(a).\\\" Three days later, the\\n\\ndistrict court summarily denied the motion. Trial counsel did not\\n\\nfile a notice of appeal, and the fourteen-day appeal period expired\\n\\non May 27, 2016. At that time, the petitioner was not aware that\\n\\ntrial counsel had filed a motion for reconsideration, nor was he\\n\\naware that it had been denied.\\n\\n The petitioner was shuttled among several different\\n\\ncorrectional facilities following the imposition of sentence.\\n\\nAfter arriving at his destination in mid-July, he wrote to the\\n\\ndistrict court requesting a copy of his docket sheet. The\\n\\n\\n - 6 -\\n\\fpetitioner stated that he was \\\"in the process of a[n] appeal\\\" and\\n\\nneeded \\\"certain information.\\\" The court granted his request on\\n\\nAugust 2, 2016. Upon receiving the docket sheet, the petitioner\\n\\nrealized for the first time that a notice of appeal had not been\\n\\nfiled on his behalf. With the help of another inmate, he filed a\\n\\npro se petition to vacate his sentence pursuant to 28 U.S.C.\\n\\n§ 2255, claiming that trial counsel was ineffective for failing to\\n\\nfile a notice of appeal.\\n\\n The district court referred the section 2255 petition to\\n\\na magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.\\n\\n72(b)(1). After appointing post-conviction counsel, the\\n\\nmagistrate judge held an evidentiary hearing. Both the petitioner\\n\\nand trial counsel testified about the details of their two-minute\\n\\ncellblock conversation. According to the petitioner, he \\\"asked\\n\\nthe attorney why they had given me so much time\\\" and made it plain\\n\\nthat all along, he had \\\"wanted to appeal because the sentence was\\n\\ntoo high.\\\" The petitioner testified that trial counsel replied\\n\\nthat the sentence \\\"could not be appealed.\\\" When the petitioner\\n\\ninsisted that \\\"there had to be a way,\\\" trial counsel advised him\\n\\nto file a section 2255 petition.\\n\\n Trial counsel offered a somewhat different version. He\\n\\nrecalled \\\"discussing . . . the changes to the [PSI Report] and why\\n\\n[the court] finally made the determination that it did.\\\" He\\n\\nthought that he had \\\"mentioned\\\" filing a motion for\\n\\n\\n - 7 -\\n\\freconsideration, but he did not \\\"think [he and the petitioner]\\n\\never agreed to it.\\\" Importantly, trial counsel claimed to have\\n\\ntold the petitioner that although \\\"there was a waiver of appeal,\\n\\n. . . if [the petitioner] thought that there was anything that\\n\\ncould be appealed, that he had fourteen days and had to inform me\\n\\nso that I could file something.\\\"\\n\\n The magistrate judge reserved decision and subsequently\\n\\nissued a report and recommendation, recommending that the\\n\\npetitioner's ineffective assistance claim should be granted and\\n\\nthat he should be allowed an appropriate opportunity to perfect a\\n\\ndelayed appeal. The magistrate judge found that although the\\n\\npetitioner had not explicitly instructed trial counsel to file a\\n\\nnotice of appeal,3 he had manifestly demonstrated an interest in\\n\\nappealing sufficient to trigger trial counsel's constitutional\\n\\nduty to consult. The magistrate judge then concluded that, \\\"[e]ven\\n\\nfully crediting [trial counsel's] testimony, his discussion with\\n\\n[the petitioner at the cellblock] still did not meet the Supreme\\n\\nCourt's requirement for a consult.\\\" Building on this foundation,\\n\\nthe magistrate judge ruled that the Flores-Ortega presumption of\\n\\nprejudice, see 528 U.S. at 483, applied even though the petitioner\\n\\nhad signed an appeal waiver. Thus, what remained was \\\"to determine\\n\\n\\n 3 In his appellate briefs, the petitioner does not argue that\\nhe explicitly instructed trial counsel to file a notice of appeal.\\nConsequently, we deem any such argument waived. See United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 8 -\\n\\fwhether [the petitioner] showed . . . a reasonable probability\\n\\nthat he would have timely appealed.\\\" The magistrate judge then\\n\\nresolved this issue in the petitioner's favor and recommended\\n\\ngranting the section 2255 petition.\\n\\n The government objected, see Fed. R. Crim. P. 59(b)(2),\\n\\nand the district court, exercising de novo review, see Fed. R.\\n\\nCrim. P. 59(b)(3), and without holding a further evidentiary\\n\\nhearing, rejected the magistrate judge's recommendation. The\\n\\ncourt did not take issue with any of the magistrate judge's\\n\\nfindings of fact but, rather, held that Flores-Ortega's\\n\\npresumption of prejudice was inapposite because the petitioner had\\n\\nexecuted an appeal waiver. In the absence of such a presumption,\\n\\nthe petitioner could not (in the district court's view) show any\\n\\nprejudice flowing from trial counsel's failure to file a timely\\n\\nnotice of appeal. The court acknowledged, though, that if Flores-\\n\\nOrtega applied notwithstanding the appeal waiver, the petitioner\\n\\nmight be able to demonstrate that he had expressed an interest in\\n\\nappealing to trial counsel and that trial counsel's failure to\\n\\nconsult with him may have deprived him of an appeal he would\\n\\notherwise have taken.\\n\\n The district court issued a certificate of\\n\\nappealability, see 28 U.S.C. § 2253(c), and this timely appeal\\n\\nensued.\\n\\n\\n\\n\\n - 9 -\\n\\fII. ANALYSIS\\n\\n When a habeas petitioner appeals from the district\\n\\ncourt's denial of a section 2255 petition for post-conviction\\n\\nrelief following an evidentiary hearing, our review of the court's\\n\\nfactual findings is for clear error. See Casiano-Jiménez v. United\\n\\nStates, 817 F.3d 816, 820 (1st Cir. 2016). Questions of law, of\\n\\ncourse, engender de novo review. See id. Here, the magistrate\\n\\njudge made factual findings after an evidentiary hearing. The\\n\\ndistrict court — which did not have the benefit of hearing live\\n\\ntestimony — did not take issue with the magistrate judge's factual\\n\\nfindings, nor did it make any explicit factual findings of its\\n\\nown. Thus, we treat the district court as \\\"adopt[ing] (albeit\\n\\nimplicitly) the well-considered factual findings made by the\\n\\nMagistrate Judge.\\\" United States v. J.C.D., 861 F.3d 1, 5 (1st\\n\\nCir. 2017).\\n\\n Our starting point is the constitutional guarantee of\\n\\n\\\"the right to the effective assistance of counsel.\\\" Strickland v.\\n\\nWashington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,\\n\\n397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI. In\\n\\norder to succeed on an ineffective assistance claim, a \\\"defendant\\n\\nmust show both that counsel's performance was deficient and that\\n\\nit prejudiced his defense.\\\" Janosky v. St. Amand, 594 F.3d 39, 45\\n\\n(1st Cir. 2010) (citing Strickland, 466 U.S. at 687). In Flores-\\n\\nOrtega, the Supreme Court held that Strickland \\\"applies to claims\\n\\n\\n - 10 -\\n\\f. . . that counsel was constitutionally ineffective for failing to\\n\\nfile a notice of appeal.\\\" 528 U.S. at 477.\\n\\n With respect to the first element of the Strickland\\n\\ninquiry, the Flores-Ortega Court concluded that a defense\\n\\nattorney's representation is constitutionally deficient if the\\n\\nattorney either \\\"disregards specific instructions from the\\n\\ndefendant to file a notice of appeal\\\" or fails (under certain\\n\\ncircumstances) to consult with the defendant about an appeal. Id.\\n\\nat 480. Specifically, the Court held that \\\"counsel has a\\n\\nconstitutionally imposed duty to consult with the defendant about\\n\\nan appeal when there is reason to think either (1) that a rational\\n\\ndefendant would want to appeal (for example, because there are\\n\\nnonfrivolous grounds for appeal), or (2) that this particular\\n\\ndefendant reasonably demonstrated to counsel that he was\\n\\ninterested in appealing.\\\" Id. By \\\"consult,\\\" the Court clarified\\n\\nthat it meant \\\"advising the defendant about the advantages and\\n\\ndisadvantages of taking an appeal, and making a reasonable effort\\n\\nto discover the defendant's wishes.\\\" Id. at 478.\\n\\n With respect to the second element of the Strickland\\n\\ninquiry, the Flores-Ortega Court concluded that a defendant whose\\n\\nattorney fails to carry out a duty to consult with him about an\\n\\nappeal is entitled to a presumption of prejudice. See id. at 483.\\n\\nA defendant is not required to show that an appeal is likely to be\\n\\nsuccessful in order to be entitled to file an appeal out-of-time\\n\\n\\n - 11 -\\n\\fbased on ineffective assistance of counsel; he need only\\n\\ndemonstrate that \\\"counsel's constitutionally deficient performance\\n\\ndeprive[d] [him] of an appeal that he otherwise would have taken.\\\"\\n\\nId. at 484.\\n\\n Until very recently, federal courts were divided as to\\n\\nwhether the Flores-Ortega presumption of prejudice applies when a\\n\\ndefendant has executed an appeal waiver. Compare, e.g., Witthar\\n\\nv. United States, 793 F.3d 920, 923 (8th Cir. 2015) (holding\\n\\nFlores-Ortega applicable notwithstanding signed appeal waiver);\\n\\nCampusano v. United States, 442 F.3d 770, 776-77 (2d Cir. 2006)\\n\\n(same); Gomez-Diaz v. United States, 433 F.3d 788, 794 (11th Cir.\\n\\n2005) (same); United States v. Sandoval-Lopez, 409 F.3d 1193, 1198\\n\\n(9th Cir. 2005) (same), with Nunez v. United States, 546 F.3d 450,\\n\\n455 (7th Cir. 2008) (holding Flores-Ortega inapplicable because\\n\\ndefendant had signed appeal waiver); United States v. Mabry, 536\\n\\nF.3d 231, 241 (3d Cir. 2008) (same). But this question, previously\\n\\nthe subject of a circuit split, has now been settled. In Garza,\\n\\nthe Court held four-square that \\\"the presumption of prejudice\\n\\nrecognized in Flores-Ortega applies regardless of whether a\\n\\ndefendant has signed an appeal waiver.\\\" 139 S. Ct. at 749. The\\n\\nGarza Court explained that \\\"while signing an appeal waiver means\\n\\ngiving up some, many, or even most appellate claims, some claims\\n\\nnevertheless remain.\\\" Id. at 745; see United States v. Teeter,\\n\\n257 F.3d 14, 24-26 (1st Cir. 2001) (explaining that appeal waiver\\n\\n\\n - 12 -\\n\\fdoes not apply when waiver's scope was not clearly delineated,\\n\\nwhen plea was not knowing and voluntary, or when enforcing waiver\\n\\n\\\"would work a miscarriage of justice\\\"). The Court stressed that\\n\\nfiling a notice of appeal is \\\"a purely ministerial task that\\n\\nimposes no great burden on counsel.\\\" Garza, 139 S. Ct. at 745\\n\\n(quoting Flores-Ortega, 528 U.S. at 474).\\n\\n Although the defendant in Garza — unlike the petitioner\\n\\n— explicitly instructed his attorney to appeal, we see no reason\\n\\nwhy this distinction would affect Garza's holding that the Flores-\\n\\nOrtega presumption of prejudice \\\"applies regardless of whether a\\n\\ndefendant has signed an appeal waiver.\\\" Id. at 749. After all,\\n\\nFlores-Ortega involved a defendant who had not expressly asked his\\n\\nattorney to file an appeal. See 528 U.S. at 477. We hold that\\n\\nGarza applies and, thus, we proceed to analyze the petitioner's\\n\\nclaim under the Flores-Ortega framework.\\n\\n The first question is whether trial counsel had a duty\\n\\nto consult with the petitioner. As we already have explained, the\\n\\nduty to consult is triggered either when \\\"a rational defendant\\n\\nwould want to appeal\\\" or when a \\\"particular defendant reasonably\\n\\ndemonstrated to counsel that he was interested in appealing.\\\" Id.\\n\\nat 480. In this instance, the record makes manifest that the\\n\\npetitioner expressed to trial counsel an interest in appealing\\n\\nsufficient to activate trial counsel's duty to consult.\\n\\n\\n\\n\\n - 13 -\\n\\f We have yet to consider what qualifies as \\\"reasonably\\n\\ndemonstrat[ing]\\\" an interest in appealing. We agree with the\\n\\nweight of authority, though, that a defendant must have done more\\n\\nthan merely express his displeasure at sentencing. See United\\n\\nStates v. Cong Van Pham, 722 F.3d 320, 325 (5th Cir. 2013); Jackson\\n\\nv. Att'y Gen. of Nev., 268 F. App'x 615, 620 (9th Cir. 2008).\\n\\nInstead, the defendant must have \\\"said something to his counsel\\n\\nindicating that he had an interest in appealing.\\\" Cong Van Pham,\\n\\n722 F.3d at 325 (emphasis in original) (quoting United States v.\\n\\nCooper, 617 F.3d 307, 313 (4th Cir. 2010)). A duty to consult\\n\\narises, for example, \\\"when . . . a defendant who received\\n\\nconsecutive sentences asked 'about having time run together,'\\\" id.\\n\\n(quoting Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th\\n\\nCir. 2005)), or \\\"when a defendant asked after sentencing 'what's\\n\\nnext? What can we do now?,'\\\" id. (quoting Palacios v. United\\n\\nStates, 453 F. App'x 887, 889 (11th Cir. 2011) (per curiam)).\\n\\n Here, the magistrate judge credited the petitioner's\\n\\ntestimony that he asked trial counsel why he had gotten \\\"so much\\n\\ntime.\\\" In addition, it is undisputed that the petitioner and trial\\n\\ncounsel discussed the possibility of filing a motion for\\n\\nreconsideration. The government argues that a motion for\\n\\nreconsideration and an appeal are materially different. This\\n\\nargument is unavailing.\\n\\n\\n\\n\\n - 14 -\\n\\f To begin, \\\"[t]here is simply no such thing as a 'motion\\n\\nto reconsider' an otherwise final sentence.\\\" United States v.\\n\\nOrtiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014). In other words, the\\n\\nonly vehicle for post-conviction relief that trial counsel\\n\\ndiscussed with the petitioner did not actually exist — yet the\\n\\npetitioner had no way of knowing that. Unsurprisingly, then — as\\n\\nthe district court noted — the petitioner's testimony at the\\n\\nevidentiary hearing \\\"exhibited confusion\\\" and \\\"conflate[d] a\\n\\nnotice of appeal with a motion for reconsideration.\\\" Rojas-Medina\\n\\nv. United States, 290 F. Supp. 3d 145, 156-57 (D.P.R. 2018). A\\n\\ndefendant — especially a defendant who is not an English speaker\\n\\n— should not be required to use magic words in order to trigger\\n\\nhis counsel's duty to advise him about his right to appeal. See\\n\\nCong Van Pham, 722 F.3d at 325. What counts is the substance and\\n\\nthrust of what the defendant says to counsel.\\n\\n In the case at hand, the petitioner made it luminously\\n\\nclear that he was dissatisfied with the sentence imposed and\\n\\ninterested in whatever relief might be available. No more was\\n\\nexigible to ground the conclusion that the petitioner reasonably\\n\\ndemonstrated to his lawyer his interest in appealing, thus\\n\\ntriggering the lawyer's duty to consult with him about the\\n\\nadvantages and disadvantages of taking an appeal.\\n\\n A question remains as to whether trial counsel fulfilled\\n\\nhis duty to consult. We think not. Trial counsel's two-minute\\n\\n\\n - 15 -\\n\\fchat with the petitioner, without more, was insufficient to\\n\\ndischarge this duty. At a minimum, trial counsel was required to\\n\\nadvise his client about the pros and cons of taking an appeal, and\\n\\nthen to make a reasonable effort to ascertain his client's wishes.\\n\\nSee Flores-Ortega, 528 U.S. at 478. Even if we were to credit\\n\\ntrial counsel's testimony that he told the petitioner that \\\"if he\\n\\nthought . . . there was anything that could be appealed . . . he\\n\\nhad fourteen days\\\" within which to inform trial counsel that he\\n\\nwanted to appeal — a matter on which we take no view — that\\n\\nstatement did not shed any glimmer of light on the advantages or\\n\\ndisadvantages of taking an appeal.\\n\\n In an attempt to sidestep this hurdle, the government\\n\\npoints to conversations between the petitioner and trial counsel\\n\\nprior to sentencing, in which trial counsel \\\"advised [the\\n\\npetitioner] about the consequences of his appellate waiver.\\\" The\\n\\ngovernment asserts that, examining the totality of the\\n\\ncircumstances (including these pre-sentencing conversations),\\n\\n\\\"[trial counsel] did more than enough to effectively 'consult'\\n\\nwith [the petitioner] about an appeal.\\\"\\n\\n This assertion defies reason. Even if we were disposed\\n\\nto consider the pre-sentencing conversations, it appears that\\n\\ntrial counsel did no more than inform the petitioner that his\\n\\nappeal waiver would prevent him from filing an appeal. That may\\n\\nor may not have been true. See Teeter, 257 F.3d at 24-26\\n\\n\\n - 16 -\\n\\f(cataloguing exceptions to appeal waiver's preclusive effect). In\\n\\nall events, we agree with the Fifth Circuit that \\\"[c]ounsel's duty\\n\\nto [consult] requires more than simply notice that an appeal is\\n\\navailable or advice that an appeal may be unavailing.\\\" White v.\\n\\nJohnson, 180 F.3d 648, 652 (5th Cir. 1999).\\n\\n Our inquiry does not end with the conclusion that trial\\n\\ncounsel did not properly discharge his duty to consult. It remains\\n\\nfor us to determine whether counsel's constitutionally deficient\\n\\nperformance prejudiced the petitioner by \\\"depriv[ing] [him] of an\\n\\nappeal that he otherwise would have taken.\\\" Flores-Ortega, 528\\n\\nU.S. at 484. The Supreme Court has cautioned that although this\\n\\nquestion ultimately \\\"will turn on the facts of the particular\\n\\ncase[,] . . . evidence that there were nonfrivolous grounds for\\n\\nappeal or that the defendant promptly expressed a desire to appeal\\n\\nwill often be highly relevant in making this determination.\\\" Id.\\n\\nat 472.\\n\\n Here, the petitioner promptly expressed a desire to\\n\\nappeal. At his first possible opportunity to speak with counsel\\n\\nafter sentencing, he expressed dissatisfaction with his sentence\\n\\nand an interest in pursuing post-conviction relief. He then\\n\\nrequested his docket sheet from the district court soon after\\n\\narriving at his designated custodial facility. Upon realizing\\n\\nthat no appeal had been taken, he promptly sought assistance and\\n\\nperfected a section 2255 petition. Cf. Frazer, 430 F.3d at 712\\n\\n\\n - 17 -\\n\\f(noting that petitioner's \\\"tenacity in pursuing habeas relief\\n\\n. . . bolsters th[e] conclusion\\\" that he would have appealed).\\n\\n To cinch the matter, we find that the petitioner has at\\n\\nleast one nonfrivolous ground for appealing, notwithstanding his\\n\\nappeal waiver. He has made it pellucid that he wishes to\\n\\nchallenge, inter alia, the district court's determination that his\\n\\nsentence should run consecutive to, not concurrent with, any state\\n\\nsentence. In United States v. Maldonado-Escarfullery, we held\\n\\nthat an appeal of a consecutive sentence fell beyond the reach of\\n\\nan appeal waiver when \\\"the plea agreement did not make any\\n\\nrecommendation as to whether the sentence should run concurrently\\n\\nor consecutively.\\\" 689 F.3d 94, 97 n.2 (1st Cir. 2012). Several\\n\\nyears later, we reached the same conclusion in United States v.\\n\\nSantiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014).\\n\\n The petitioner has a plausible argument that the same is\\n\\ntrue here. The SENTENCING RECOMMENDATION provision in his case\\n\\ndid not specify whether his sentence should run concurrently or\\n\\nconsecutively, yet the district court chose the latter. It follows\\n\\nthat the petitioner's proposed challenge to the district court's\\n\\nrefusal to run his sentence concurrently with any state sentence\\n\\nthat might be imposed constitutes a nonfrivolous ground of appeal.\\n\\nAfter all, an argument need only be colorable to qualify as\\n\\nnonfrivolous, see United States v. Aguilera, 179 F.3d 604, 607\\n\\n(8th Cir. 1999); it does not have to be a sure winner.\\n\\n\\n - 18 -\\n\\f To say more would be superogatory. We hold that trial\\n\\ncounsel's failure to consult deprived the petitioner of an appeal\\n\\nthat he otherwise would have taken.\\n\\nIII. CONCLUSION\\n\\n We need go no further. For the reasons elucidated above,\\n\\nwe reverse the judgment of the district court and remand with\\n\\ninstructions to vacate the judgment in the underlying criminal\\n\\ncase and reenter it so that the petitioner may enjoy a fair\\n\\nopportunity to file a timely notice of appeal. For these purposes,\\n\\nthe district court shall follow the procedural roadmap charted by\\n\\nthis court in United States v. Torres-Otero, 232 F.3d 24, 31-32\\n\\n(1st Cir. 2000). Mandate shall issue forthwith; without prejudice,\\n\\nhowever, to the right of either party to file, within customary\\n\\ntime limits, petitions for rehearing or rehearing en banc.\\n\\n\\n\\n\\n - 19 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4397735/\", \"author_raw\": \"SELYA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4620482/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Toribio ROJAS-MEDINA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1150\n\n TORIBIO ROJAS-MEDINA,\n\n Petitioner, Appellant,\n\n v.\n\n UNITED STATES OF AMERICA,\n\n Respondent, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Francisco A. Besosa, U.S. District Judge]\n [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]\n\n\n Before\n\n Torruella, Selya, and Lynch,\n Circuit Judges.\n\n\n Franco L. Pérez-Redondo, Research & Writing Attorney, with\nwhom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\nSection, were on brief, for petitioner.\n Antonio L. Pérez-Alonso, Assistant United States Attorney,\nwith whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and\nMariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,\nAppellate Division, were on brief, for respondent.\n\n\n May 16, 2019\n\f SELYA, Circuit Judge. In Roe v. Flores-Ortega, 528 U.S.\n\n470 (2000), the Supreme Court held that, as a matter of\n\nconstitutional law, a defense attorney has a duty to consult with\n\na client about an appeal either when a particular defendant\n\nreasonably demonstrated to the attorney that he was interested in\n\nappealing or when the circumstances are such that a rational\n\ndefendant would want to appeal. See id. at 480. The Court went\n\non to hold that when an attorney violates this duty, a presumption\n\nof prejudice arises. See id. at 483. The appeal at hand requires\n\nus, for the first time, to apply the Flores-Ortega presumption of\n\nprejudice in circumstances in which the defendant has previously\n\nexecuted a plea agreement containing a waiver-of-appeal provision.\n\nMindful of the teachings of both Flores-Ortega and Garza v. Idaho,\n\n139 S. Ct. 738 (2019), we reverse the district court's dismissal\n\nof petitioner-appellant Toribio Rojas-Medina's petition for post-\n\nconviction relief and direct the district court, on remand, to\n\nafford him an appropriate opportunity to file a timely notice of\n\nappeal.\n\nI. BACKGROUND\n\n The petitioner is a monolingual Spanish speaker who is\n\na native and citizen of the Dominican Republic. On November 23,\n\n2015, a federal grand jury sitting in the District of Puerto Rico\n\nreturned a three-count indictment charging him with unlawfully\n\ntransporting noncitizens (count 1), unlawful reentry into the\n\n\n - 2 -\n\fUnited States by a deported noncitizen (count 2), and failure to\n\nheave to a vessel (count 3). See 8 U.S.C. §§ 1324(a)(1)(A)(i),\n\n1326(b)(1); 18 U.S.C. § 2237(a)(1). Roughly three months later,\n\nthe petitioner entered into a plea agreement (the Agreement),\n\nwherein he agreed to plead guilty to count 2 (unlawful reentry\n\ninto the United States by a deported noncitizen). In exchange,\n\nthe government agreed to dismiss the other two counts. The\n\nAgreement memorialized, inter alia, the parties' stipulation to a\n\ntotal offense level (TOL) of 21, but contained no stipulation as\n\nto the petitioner's criminal history category (CHC).\n\n In a section of the Agreement entitled \"SENTENCING\n\nRECOMMENDATION,\" the parties agreed that they would \"recommend a\n\nsentence at the lower end of the applicable Guideline Sentencing\n\nRange.\" The parties further agreed that the petitioner \"may\n\nrequest that [his] sentence run concurrently with any pending state\n\nsentence or state revocation sentence that may be imposed as a\n\nresult of the current criminal conduct,\" and \"may also argue for\n\na downward departure\" on the basis \"that his [CHC] substantially\n\noverrepresent[ed] the seriousness of [his] criminal conduct or the\n\nlikelihood that [he] will commit other crimes.\" Of particular\n\npertinence for present purposes, the Agreement contained a waiver-\n\nof-appeal provision under which the petitioner surrendered the\n\nright to appeal his conviction and sentence, \"provided that [he\n\nwas] sentenced in accordance with the terms and conditions set\n\n\n - 3 -\n\fforth in the Sentence Recommendation provisions of [the\n\nAgreement].\"\n\n A probation officer prepared the presentence\n\ninvestigation report (PSI Report). Consistent with the Agreement,\n\nthe probation officer recommended a TOL of 21. She assessed the\n\npetitioner eight criminal history points, placing him in CHC IV.\n\nThe recommended guideline sentencing range (GSR) was 57 to 71\n\nmonths.\n\n Neither party objected to the guideline calculations\n\nlimned in the PSI Report. The petitioner's then-counsel (whom we\n\nshall call \"trial counsel\") filed a sentencing memorandum in which\n\nhe urged the district court to vary downward and sentence the\n\npetitioner based on a CHC of III. Specifically, trial counsel\n\nsought a sentence of 46 months, which fell at the bottom of the\n\nGSR for a TOL of 21 and a CHC of III. Trial counsel also requested\n\nthat the sentence \"run concurrently with any pending state\n\nsentence.\"1\n\n Prior to sentencing, a different probation officer\n\napproached trial counsel, told him that the PSI Report had\n\nmiscalculated the petitioner's CHC, and said that two additional\n\n\n\n 1\n The petitioner committed the current offense while on post-\nrelease supervision in New York. Thus, he was concerned that he\nmight be subject to additional state prison time if the New York\nauthorities moved to revoke his supervision due to his federal\noffense.\n\n\n - 4 -\n\fcriminal history points would be added. These additional points\n\nserved to elevate the petitioner from CHC IV to CHC V.\n\n The district court convened the disposition hearing on\n\nMay 13, 2016. The court asked trial counsel whether he needed\n\nadditional time to prepare, given the change in the probation\n\nofficer's CHC calculation. Trial counsel said that he did not\n\nneed extra time, reasoning that \"by adding two additional points,\n\nit would only strengthen my position as to the overrepresentation\n\nof [the petitioner's] criminal history.\" He added that he would\n\nstill be able to pursue his request for a downward departure.2 He\n\nthen presented his argument for a 46-month sentence. The\n\ngovernment made clear that it was \"not objecting or arguing\n\nagainst\" such a sentence, which was \"discussed as part of the plea\n\nnegotiations.\" Rather, the government was \"standing by the\n\n[Agreement]\" and \"recommending a sentence at the lower end of the\n\napplicable guideline range based on a [TOL] of 21, according to\n\nthe [CHC] that the Court accepts.\"\n\n\n\n 2\n It is evident that trial counsel was using the term\n\"departure\" colloquially to include both downward departures and\ndownward variances. Cf. United States v. Santini-Santiago, 846\nF.3d 487, 489-90 (1st Cir. 2017) (explaining that departures may\nonly be \"justified by reference to specified characteristics of\nthe offense or the offender, or to an early disposition program,\"\nwhereas variances may be justified by a much broader swath of\nrationales, \"such as 'deterrence,' inducing 'respect for the law,'\nand effective 'correctional treatment'\" (quoting 18 U.S.C.\n§ 3553(a))). The word \"departure\" appears to have been given this\nsame broad meaning in the Agreement.\n\n\n - 5 -\n\f When all was said and done, the district court adopted\n\nthe probation officer's revised recommendation, assessed ten\n\ncriminal history points, and placed the petitioner in CHC V. Using\n\nthe agreed TOL of 21, the court set the GSR at 70 to 87 months.\n\nIt proceeded to impose a 70-month term of immurement to run\n\nconsecutively vis-á-vis any state sentence that might be imposed.\n\nTrial counsel immediately objected.\n\n Upon completion of the sentencing proceeding, trial\n\ncounsel had a two-minute conversation with the petitioner at the\n\ncourthouse cellblock. After this brief chat, the two never spoke\n\nagain. Judgment entered on May 13, 2016 — the same day that trial\n\ncounsel filed a so-called \"Motion to Reconsider Sentence.\" The\n\nmotion papers contended that the 70-month sentence was \"extremely\n\nharsh\" and \"greater than necessary to fulfill the purposes of\n\nsentencing under [18 U.S.C. §] 3553(a).\" Three days later, the\n\ndistrict court summarily denied the motion. Trial counsel did not\n\nfile a notice of appeal, and the fourteen-day appeal period expired\n\non May 27, 2016. At that time, the petitioner was not aware that\n\ntrial counsel had filed a motion for reconsideration, nor was he\n\naware that it had been denied.\n\n The petitioner was shuttled among several different\n\ncorrectional facilities following the imposition of sentence.\n\nAfter arriving at his destination in mid-July, he wrote to the\n\ndistrict court requesting a copy of his docket sheet. The\n\n\n - 6 -\n\fpetitioner stated that he was \"in the process of a[n] appeal\" and\n\nneeded \"certain information.\" The court granted his request on\n\nAugust 2, 2016. Upon receiving the docket sheet, the petitioner\n\nrealized for the first time that a notice of appeal had not been\n\nfiled on his behalf. With the help of another inmate, he filed a\n\npro se petition to vacate his sentence pursuant to 28 U.S.C.\n\n§ 2255, claiming that trial counsel was ineffective for failing to\n\nfile a notice of appeal.\n\n The district court referred the section 2255 petition to\n\na magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.\n\n72(b)(1). After appointing post-conviction counsel, the\n\nmagistrate judge held an evidentiary hearing. Both the petitioner\n\nand trial counsel testified about the details of their two-minute\n\ncellblock conversation. According to the petitioner, he \"asked\n\nthe attorney why they had given me so much time\" and made it plain\n\nthat all along, he had \"wanted to appeal because the sentence was\n\ntoo high.\" The petitioner testified that trial counsel replied\n\nthat the sentence \"could not be appealed.\" When the petitioner\n\ninsisted that \"there had to be a way,\" trial counsel advised him\n\nto file a section 2255 petition.\n\n Trial counsel offered a somewhat different version. He\n\nrecalled \"discussing . . . the changes to the [PSI Report] and why\n\n[the court] finally made the determination that it did.\" He\n\nthought that he had \"mentioned\" filing a motion for\n\n\n - 7 -\n\freconsideration, but he did not \"think [he and the petitioner]\n\never agreed to it.\" Importantly, trial counsel claimed to have\n\ntold the petitioner that although \"there was a waiver of appeal,\n\n. . . if [the petitioner] thought that there was anything that\n\ncould be appealed, that he had fourteen days and had to inform me\n\nso that I could file something.\"\n\n The magistrate judge reserved decision and subsequently\n\nissued a report and recommendation, recommending that the\n\npetitioner's ineffective assistance claim should be granted and\n\nthat he should be allowed an appropriate opportunity to perfect a\n\ndelayed appeal. The magistrate judge found that although the\n\npetitioner had not explicitly instructed trial counsel to file a\n\nnotice of appeal,3 he had manifestly demonstrated an interest in\n\nappealing sufficient to trigger trial counsel's constitutional\n\nduty to consult. The magistrate judge then concluded that, \"[e]ven\n\nfully crediting [trial counsel's] testimony, his discussion with\n\n[the petitioner at the cellblock] still did not meet the Supreme\n\nCourt's requirement for a consult.\" Building on this foundation,\n\nthe magistrate judge ruled that the Flores-Ortega presumption of\n\nprejudice, see 528 U.S. at 483, applied even though the petitioner\n\nhad signed an appeal waiver. Thus, what remained was \"to determine\n\n\n 3 In his appellate briefs, the petitioner does not argue that\nhe explicitly instructed trial counsel to file a notice of appeal.\nConsequently, we deem any such argument waived. See United States\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n\n - 8 -\n\fwhether [the petitioner] showed . . . a reasonable probability\n\nthat he would have timely appealed.\" The magistrate judge then\n\nresolved this issue in the petitioner's favor and recommended\n\ngranting the section 2255 petition.\n\n The government objected, see Fed. R. Crim. P. 59(b)(2),\n\nand the district court, exercising de novo review, see Fed. R.\n\nCrim. P. 59(b)(3), and without holding a further evidentiary\n\nhearing, rejected the magistrate judge's recommendation. The\n\ncourt did not take issue with any of the magistrate judge's\n\nfindings of fact but, rather, held that Flores-Ortega's\n\npresumption of prejudice was inapposite because the petitioner had\n\nexecuted an appeal waiver. In the absence of such a presumption,\n\nthe petitioner could not (in the district court's view) show any\n\nprejudice flowing from trial counsel's failure to file a timely\n\nnotice of appeal. The court acknowledged, though, that if Flores-\n\nOrtega applied notwithstanding the appeal waiver, the petitioner\n\nmight be able to demonstrate that he had expressed an interest in\n\nappealing to trial counsel and that trial counsel's failure to\n\nconsult with him may have deprived him of an appeal he would\n\notherwise have taken.\n\n The district court issued a certificate of\n\nappealability, see 28 U.S.C. § 2253(c), and this timely appeal\n\nensued.\n\n\n\n\n - 9 -\n\fII. ANALYSIS\n\n When a habeas petitioner appeals from the district\n\ncourt's denial of a section 2255 petition for post-conviction\n\nrelief following an evidentiary hearing, our review of the court's\n\nfactual findings is for clear error. See Casiano-Jiménez v. United\n\nStates, 817 F.3d 816, 820 (1st Cir. 2016). Questions of law, of\n\ncourse, engender de novo review. See id. Here, the magistrate\n\njudge made factual findings after an evidentiary hearing. The\n\ndistrict court — which did not have the benefit of hearing live\n\ntestimony — did not take issue with the magistrate judge's factual\n\nfindings, nor did it make any explicit factual findings of its\n\nown. Thus, we treat the district court as \"adopt[ing] (albeit\n\nimplicitly) the well-considered factual findings made by the\n\nMagistrate Judge.\" United States v. J.C.D., 861 F.3d 1, 5 (1st\n\nCir. 2017).\n\n Our starting point is the constitutional guarantee of\n\n\"the right to the effective assistance of counsel.\" Strickland v.\n\nWashington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,\n\n397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI. In\n\norder to succeed on an ineffective assistance claim, a \"defendant\n\nmust show both that counsel's performance was deficient and that\n\nit prejudiced his defense.\" Janosky v. St. Amand, 594 F.3d 39, 45\n\n(1st Cir. 2010) (citing Strickland, 466 U.S. at 687). In Flores-\n\nOrtega, the Supreme Court held that Strickland \"applies to claims\n\n\n - 10 -\n\f. . . that counsel was constitutionally ineffective for failing to\n\nfile a notice of appeal.\" 528 U.S. at 477.\n\n With respect to the first element of the Strickland\n\ninquiry, the Flores-Ortega Court concluded that a defense\n\nattorney's representation is constitutionally deficient if the\n\nattorney either \"disregards specific instructions from the\n\ndefendant to file a notice of appeal\" or fails (under certain\n\ncircumstances) to consult with the defendant about an appeal. Id.\n\nat 480. Specifically, the Court held that \"counsel has a\n\nconstitutionally imposed duty to consult with the defendant about\n\nan appeal when there is reason to think either (1) that a rational\n\ndefendant would want to appeal (for example, because there are\n\nnonfrivolous grounds for appeal), or (2) that this particular\n\ndefendant reasonably demonstrated to counsel that he was\n\ninterested in appealing.\" Id. By \"consult,\" the Court clarified\n\nthat it meant \"advising the defendant about the advantages and\n\ndisadvantages of taking an appeal, and making a reasonable effort\n\nto discover the defendant's wishes.\" Id. at 478.\n\n With respect to the second element of the Strickland\n\ninquiry, the Flores-Ortega Court concluded that a defendant whose\n\nattorney fails to carry out a duty to consult with him about an\n\nappeal is entitled to a presumption of prejudice. See id. at 483.\n\nA defendant is not required to show that an appeal is likely to be\n\nsuccessful in order to be entitled to file an appeal out-of-time\n\n\n - 11 -\n\fbased on ineffective assistance of counsel; he need only\n\ndemonstrate that \"counsel's constitutionally deficient performance\n\ndeprive[d] [him] of an appeal that he otherwise would have taken.\"\n\nId. at 484.\n\n Until very recently, federal courts were divided as to\n\nwhether the Flores-Ortega presumption of prejudice applies when a\n\ndefendant has executed an appeal waiver. Compare, e.g., Witthar\n\nv. United States, 793 F.3d 920, 923 (8th Cir. 2015) (holding\n\nFlores-Ortega applicable notwithstanding signed appeal waiver);\n\nCampusano v. United States, 442 F.3d 770, 776-77 (2d Cir. 2006)\n\n(same); Gomez-Diaz v. United States, 433 F.3d 788, 794 (11th Cir.\n\n2005) (same); United States v. Sandoval-Lopez, 409 F.3d 1193, 1198\n\n(9th Cir. 2005) (same), with Nunez v. United States, 546 F.3d 450,\n\n455 (7th Cir. 2008) (holding Flores-Ortega inapplicable because\n\ndefendant had signed appeal waiver); United States v. Mabry, 536\n\nF.3d 231, 241 (3d Cir. 2008) (same). But this question, previously\n\nthe subject of a circuit split, has now been settled. In Garza,\n\nthe Court held four-square that \"the presumption of prejudice\n\nrecognized in Flores-Ortega applies regardless of whether a\n\ndefendant has signed an appeal waiver.\" 139 S. Ct. at 749. The\n\nGarza Court explained that \"while signing an appeal waiver means\n\ngiving up some, many, or even most appellate claims, some claims\n\nnevertheless remain.\" Id. at 745; see United States v. Teeter,\n\n257 F.3d 14, 24-26 (1st Cir. 2001) (explaining that appeal waiver\n\n\n - 12 -\n\fdoes not apply when waiver's scope was not clearly delineated,\n\nwhen plea was not knowing and voluntary, or when enforcing waiver\n\n\"would work a miscarriage of justice\"). The Court stressed that\n\nfiling a notice of appeal is \"a purely ministerial task that\n\nimposes no great burden on counsel.\" Garza, 139 S. Ct. at 745\n\n(quoting Flores-Ortega, 528 U.S. at 474).\n\n Although the defendant in Garza — unlike the petitioner\n\n— explicitly instructed his attorney to appeal, we see no reason\n\nwhy this distinction would affect Garza's holding that the Flores-\n\nOrtega presumption of prejudice \"applies regardless of whether a\n\ndefendant has signed an appeal waiver.\" Id. at 749. After all,\n\nFlores-Ortega involved a defendant who had not expressly asked his\n\nattorney to file an appeal. See 528 U.S. at 477. We hold that\n\nGarza applies and, thus, we proceed to analyze the petitioner's\n\nclaim under the Flores-Ortega framework.\n\n The first question is whether trial counsel had a duty\n\nto consult with the petitioner. As we already have explained, the\n\nduty to consult is triggered either when \"a rational defendant\n\nwould want to appeal\" or when a \"particular defendant reasonably\n\ndemonstrated to counsel that he was interested in appealing.\" Id.\n\nat 480. In this instance, the record makes manifest that the\n\npetitioner expressed to trial counsel an interest in appealing\n\nsufficient to activate trial counsel's duty to consult.\n\n\n\n\n - 13 -\n\f We have yet to consider what qualifies as \"reasonably\n\ndemonstrat[ing]\" an interest in appealing. We agree with the\n\nweight of authority, though, that a defendant must have done more\n\nthan merely express his displeasure at sentencing. See United\n\nStates v. Cong Van Pham, 722 F.3d 320, 325 (5th Cir. 2013); Jackson\n\nv. Att'y Gen. of Nev., 268 F. App'x 615, 620 (9th Cir. 2008).\n\nInstead, the defendant must have \"said something to his counsel\n\nindicating that he had an interest in appealing.\" Cong Van Pham,\n\n722 F.3d at 325 (emphasis in original) (quoting United States v.\n\nCooper, 617 F.3d 307, 313 (4th Cir. 2010)). A duty to consult\n\narises, for example, \"when . . . a defendant who received\n\nconsecutive sentences asked 'about having time run together,'\" id.\n\n(quoting Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th\n\nCir. 2005)), or \"when a defendant asked after sentencing 'what's\n\nnext? What can we do now?,'\" id. (quoting Palacios v. United\n\nStates, 453 F. App'x 887, 889 (11th Cir. 2011) (per curiam)).\n\n Here, the magistrate judge credited the petitioner's\n\ntestimony that he asked trial counsel why he had gotten \"so much\n\ntime.\" In addition, it is undisputed that the petitioner and trial\n\ncounsel discussed the possibility of filing a motion for\n\nreconsideration. The government argues that a motion for\n\nreconsideration and an appeal are materially different. This\n\nargument is unavailing.\n\n\n\n\n - 14 -\n\f To begin, \"[t]here is simply no such thing as a 'motion\n\nto reconsider' an otherwise final sentence.\" United States v.\n\nOrtiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014). In other words, the\n\nonly vehicle for post-conviction relief that trial counsel\n\ndiscussed with the petitioner did not actually exist — yet the\n\npetitioner had no way of knowing that. Unsurprisingly, then — as\n\nthe district court noted — the petitioner's testimony at the\n\nevidentiary hearing \"exhibited confusion\" and \"conflate[d] a\n\nnotice of appeal with a motion for reconsideration.\" Rojas-Medina\n\nv. United States, 290 F. Supp. 3d 145, 156-57 (D.P.R. 2018). A\n\ndefendant — especially a defendant who is not an English speaker\n\n— should not be required to use magic words in order to trigger\n\nhis counsel's duty to advise him about his right to appeal. See\n\nCong Van Pham, 722 F.3d at 325. What counts is the substance and\n\nthrust of what the defendant says to counsel.\n\n In the case at hand, the petitioner made it luminously\n\nclear that he was dissatisfied with the sentence imposed and\n\ninterested in whatever relief might be available. No more was\n\nexigible to ground the conclusion that the petitioner reasonably\n\ndemonstrated to his lawyer his interest in appealing, thus\n\ntriggering the lawyer's duty to consult with him about the\n\nadvantages and disadvantages of taking an appeal.\n\n A question remains as to whether trial counsel fulfilled\n\nhis duty to consult. We think not. Trial counsel's two-minute\n\n\n - 15 -\n\fchat with the petitioner, without more, was insufficient to\n\ndischarge this duty. At a minimum, trial counsel was required to\n\nadvise his client about the pros and cons of taking an appeal, and\n\nthen to make a reasonable effort to ascertain his client's wishes.\n\nSee Flores-Ortega, 528 U.S. at 478. Even if we were to credit\n\ntrial counsel's testimony that he told the petitioner that \"if he\n\nthought . . . there was anything that could be appealed . . . he\n\nhad fourteen days\" within which to inform trial counsel that he\n\nwanted to appeal — a matter on which we take no view — that\n\nstatement did not shed any glimmer of light on the advantages or\n\ndisadvantages of taking an appeal.\n\n In an attempt to sidestep this hurdle, the government\n\npoints to conversations between the petitioner and trial counsel\n\nprior to sentencing, in which trial counsel \"advised [the\n\npetitioner] about the consequences of his appellate waiver.\" The\n\ngovernment asserts that, examining the totality of the\n\ncircumstances (including these pre-sentencing conversations),\n\n\"[trial counsel] did more than enough to effectively 'consult'\n\nwith [the petitioner] about an appeal.\"\n\n This assertion defies reason. Even if we were disposed\n\nto consider the pre-sentencing conversations, it appears that\n\ntrial counsel did no more than inform the petitioner that his\n\nappeal waiver would prevent him from filing an appeal. That may\n\nor may not have been true. See Teeter, 257 F.3d at 24-26\n\n\n - 16 -\n\f(cataloguing exceptions to appeal waiver's preclusive effect). In\n\nall events, we agree with the Fifth Circuit that \"[c]ounsel's duty\n\nto [consult] requires more than simply notice that an appeal is\n\navailable or advice that an appeal may be unavailing.\" White v.\n\nJohnson, 180 F.3d 648, 652 (5th Cir. 1999).\n\n Our inquiry does not end with the conclusion that trial\n\ncounsel did not properly discharge his duty to consult. It remains\n\nfor us to determine whether counsel's constitutionally deficient\n\nperformance prejudiced the petitioner by \"depriv[ing] [him] of an\n\nappeal that he otherwise would have taken.\" Flores-Ortega, 528\n\nU.S. at 484. The Supreme Court has cautioned that although this\n\nquestion ultimately \"will turn on the facts of the particular\n\ncase[,] . . . evidence that there were nonfrivolous grounds for\n\nappeal or that the defendant promptly expressed a desire to appeal\n\nwill often be highly relevant in making this determination.\" Id.\n\nat 472.\n\n Here, the petitioner promptly expressed a desire to\n\nappeal. At his first possible opportunity to speak with counsel\n\nafter sentencing, he expressed dissatisfaction with his sentence\n\nand an interest in pursuing post-conviction relief. He then\n\nrequested his docket sheet from the district court soon after\n\narriving at his designated custodial facility. Upon realizing\n\nthat no appeal had been taken, he promptly sought assistance and\n\nperfected a section 2255 petition. Cf. Frazer, 430 F.3d at 712\n\n\n - 17 -\n\f(noting that petitioner's \"tenacity in pursuing habeas relief\n\n. . . bolsters th[e] conclusion\" that he would have appealed).\n\n To cinch the matter, we find that the petitioner has at\n\nleast one nonfrivolous ground for appealing, notwithstanding his\n\nappeal waiver. He has made it pellucid that he wishes to\n\nchallenge, inter alia, the district court's determination that his\n\nsentence should run consecutive to, not concurrent with, any state\n\nsentence. In United States v. Maldonado-Escarfullery, we held\n\nthat an appeal of a consecutive sentence fell beyond the reach of\n\nan appeal waiver when \"the plea agreement did not make any\n\nrecommendation as to whether the sentence should run concurrently\n\nor consecutively.\" 689 F.3d 94, 97 n.2 (1st Cir. 2012). Several\n\nyears later, we reached the same conclusion in United States v.\n\nSantiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014).\n\n The petitioner has a plausible argument that the same is\n\ntrue here. The SENTENCING RECOMMENDATION provision in his case\n\ndid not specify whether his sentence should run concurrently or\n\nconsecutively, yet the district court chose the latter. It follows\n\nthat the petitioner's proposed challenge to the district court's\n\nrefusal to run his sentence concurrently with any state sentence\n\nthat might be imposed constitutes a nonfrivolous ground of appeal.\n\nAfter all, an argument need only be colorable to qualify as\n\nnonfrivolous, see United States v. Aguilera, 179 F.3d 604, 607\n\n(8th Cir. 1999); it does not have to be a sure winner.\n\n\n - 18 -\n\f To say more would be superogatory. We hold that trial\n\ncounsel's failure to consult deprived the petitioner of an appeal\n\nthat he otherwise would have taken.\n\nIII. CONCLUSION\n\n We need go no further. For the reasons elucidated above,\n\nwe reverse the judgment of the district court and remand with\n\ninstructions to vacate the judgment in the underlying criminal\n\ncase and reenter it so that the petitioner may enjoy a fair\n\nopportunity to file a timely notice of appeal. For these purposes,\n\nthe district court shall follow the procedural roadmap charted by\n\nthis court in United States v. Torres-Otero, 232 F.3d 24, 31-32\n\n(1st Cir. 2000). Mandate shall issue forthwith; without prejudice,\n\nhowever, to the right of either party to file, within customary\n\ntime limits, petitions for rehearing or rehearing en banc.\n\n\n\n\n - 19 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Toribio ROJAS-MEDINA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1150\\n\\n TORIBIO ROJAS-MEDINA,\\n\\n Petitioner, Appellant,\\n\\n v.\\n\\n UNITED STATES OF AMERICA,\\n\\n Respondent, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Franco L. Pérez-Redondo, Research & Writing Attorney, with\\nwhom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-\\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\\nSection, were on brief, for petitioner.\\n Antonio L. Pérez-Alonso, Assistant United States Attorney,\\nwith whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and\\nMariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,\\nAppellate Division, were on brief, for respondent.\\n\\n\\n May 16, 2019\\n\\f SELYA, Circuit Judge. In Roe v. Flores-Ortega, 528 U.S.\\n\\n470 (2000), the Supreme Court held that, as a matter of\\n\\nconstitutional law, a defense attorney has a duty to consult with\\n\\na client about an appeal either when a particular defendant\\n\\nreasonably demonstrated to the attorney that he was interested in\\n\\nappealing or when the circumstances are such that a rational\\n\\ndefendant would want to appeal. See id. at 480. The Court went\\n\\non to hold that when an attorney violates this duty, a presumption\\n\\nof prejudice arises. See id. at 483. The appeal at hand requires\\n\\nus, for the first time, to apply the Flores-Ortega presumption of\\n\\nprejudice in circumstances in which the defendant has previously\\n\\nexecuted a plea agreement containing a waiver-of-appeal provision.\\n\\nMindful of the teachings of both Flores-Ortega and Garza v. Idaho,\\n\\n139 S. Ct. 738 (2019), we reverse the district court's dismissal\\n\\nof petitioner-appellant Toribio Rojas-Medina's petition for post-\\n\\nconviction relief and direct the district court, on remand, to\\n\\nafford him an appropriate opportunity to file a timely notice of\\n\\nappeal.\\n\\nI. BACKGROUND\\n\\n The petitioner is a monolingual Spanish speaker who is\\n\\na native and citizen of the Dominican Republic. On November 23,\\n\\n2015, a federal grand jury sitting in the District of Puerto Rico\\n\\nreturned a three-count indictment charging him with unlawfully\\n\\ntransporting noncitizens (count 1), unlawful reentry into the\\n\\n\\n - 2 -\\n\\fUnited States by a deported noncitizen (count 2), and failure to\\n\\nheave to a vessel (count 3). See 8 U.S.C. §§ 1324(a)(1)(A)(i),\\n\\n1326(b)(1); 18 U.S.C. § 2237(a)(1). Roughly three months later,\\n\\nthe petitioner entered into a plea agreement (the Agreement),\\n\\nwherein he agreed to plead guilty to count 2 (unlawful reentry\\n\\ninto the United States by a deported noncitizen). In exchange,\\n\\nthe government agreed to dismiss the other two counts. The\\n\\nAgreement memorialized, inter alia, the parties' stipulation to a\\n\\ntotal offense level (TOL) of 21, but contained no stipulation as\\n\\nto the petitioner's criminal history category (CHC).\\n\\n In a section of the Agreement entitled \\\"SENTENCING\\n\\nRECOMMENDATION,\\\" the parties agreed that they would \\\"recommend a\\n\\nsentence at the lower end of the applicable Guideline Sentencing\\n\\nRange.\\\" The parties further agreed that the petitioner \\\"may\\n\\nrequest that [his] sentence run concurrently with any pending state\\n\\nsentence or state revocation sentence that may be imposed as a\\n\\nresult of the current criminal conduct,\\\" and \\\"may also argue for\\n\\na downward departure\\\" on the basis \\\"that his [CHC] substantially\\n\\noverrepresent[ed] the seriousness of [his] criminal conduct or the\\n\\nlikelihood that [he] will commit other crimes.\\\" Of particular\\n\\npertinence for present purposes, the Agreement contained a waiver-\\n\\nof-appeal provision under which the petitioner surrendered the\\n\\nright to appeal his conviction and sentence, \\\"provided that [he\\n\\nwas] sentenced in accordance with the terms and conditions set\\n\\n\\n - 3 -\\n\\fforth in the Sentence Recommendation provisions of [the\\n\\nAgreement].\\\"\\n\\n A probation officer prepared the presentence\\n\\ninvestigation report (PSI Report). Consistent with the Agreement,\\n\\nthe probation officer recommended a TOL of 21. She assessed the\\n\\npetitioner eight criminal history points, placing him in CHC IV.\\n\\nThe recommended guideline sentencing range (GSR) was 57 to 71\\n\\nmonths.\\n\\n Neither party objected to the guideline calculations\\n\\nlimned in the PSI Report. The petitioner's then-counsel (whom we\\n\\nshall call \\\"trial counsel\\\") filed a sentencing memorandum in which\\n\\nhe urged the district court to vary downward and sentence the\\n\\npetitioner based on a CHC of III. Specifically, trial counsel\\n\\nsought a sentence of 46 months, which fell at the bottom of the\\n\\nGSR for a TOL of 21 and a CHC of III. Trial counsel also requested\\n\\nthat the sentence \\\"run concurrently with any pending state\\n\\nsentence.\\\"1\\n\\n Prior to sentencing, a different probation officer\\n\\napproached trial counsel, told him that the PSI Report had\\n\\nmiscalculated the petitioner's CHC, and said that two additional\\n\\n\\n\\n 1\\n The petitioner committed the current offense while on post-\\nrelease supervision in New York. Thus, he was concerned that he\\nmight be subject to additional state prison time if the New York\\nauthorities moved to revoke his supervision due to his federal\\noffense.\\n\\n\\n - 4 -\\n\\fcriminal history points would be added. These additional points\\n\\nserved to elevate the petitioner from CHC IV to CHC V.\\n\\n The district court convened the disposition hearing on\\n\\nMay 13, 2016. The court asked trial counsel whether he needed\\n\\nadditional time to prepare, given the change in the probation\\n\\nofficer's CHC calculation. Trial counsel said that he did not\\n\\nneed extra time, reasoning that \\\"by adding two additional points,\\n\\nit would only strengthen my position as to the overrepresentation\\n\\nof [the petitioner's] criminal history.\\\" He added that he would\\n\\nstill be able to pursue his request for a downward departure.2 He\\n\\nthen presented his argument for a 46-month sentence. The\\n\\ngovernment made clear that it was \\\"not objecting or arguing\\n\\nagainst\\\" such a sentence, which was \\\"discussed as part of the plea\\n\\nnegotiations.\\\" Rather, the government was \\\"standing by the\\n\\n[Agreement]\\\" and \\\"recommending a sentence at the lower end of the\\n\\napplicable guideline range based on a [TOL] of 21, according to\\n\\nthe [CHC] that the Court accepts.\\\"\\n\\n\\n\\n 2\\n It is evident that trial counsel was using the term\\n\\\"departure\\\" colloquially to include both downward departures and\\ndownward variances. Cf. United States v. Santini-Santiago, 846\\nF.3d 487, 489-90 (1st Cir. 2017) (explaining that departures may\\nonly be \\\"justified by reference to specified characteristics of\\nthe offense or the offender, or to an early disposition program,\\\"\\nwhereas variances may be justified by a much broader swath of\\nrationales, \\\"such as 'deterrence,' inducing 'respect for the law,'\\nand effective 'correctional treatment'\\\" (quoting 18 U.S.C.\\n§ 3553(a))). The word \\\"departure\\\" appears to have been given this\\nsame broad meaning in the Agreement.\\n\\n\\n - 5 -\\n\\f When all was said and done, the district court adopted\\n\\nthe probation officer's revised recommendation, assessed ten\\n\\ncriminal history points, and placed the petitioner in CHC V. Using\\n\\nthe agreed TOL of 21, the court set the GSR at 70 to 87 months.\\n\\nIt proceeded to impose a 70-month term of immurement to run\\n\\nconsecutively vis-á-vis any state sentence that might be imposed.\\n\\nTrial counsel immediately objected.\\n\\n Upon completion of the sentencing proceeding, trial\\n\\ncounsel had a two-minute conversation with the petitioner at the\\n\\ncourthouse cellblock. After this brief chat, the two never spoke\\n\\nagain. Judgment entered on May 13, 2016 — the same day that trial\\n\\ncounsel filed a so-called \\\"Motion to Reconsider Sentence.\\\" The\\n\\nmotion papers contended that the 70-month sentence was \\\"extremely\\n\\nharsh\\\" and \\\"greater than necessary to fulfill the purposes of\\n\\nsentencing under [18 U.S.C. §] 3553(a).\\\" Three days later, the\\n\\ndistrict court summarily denied the motion. Trial counsel did not\\n\\nfile a notice of appeal, and the fourteen-day appeal period expired\\n\\non May 27, 2016. At that time, the petitioner was not aware that\\n\\ntrial counsel had filed a motion for reconsideration, nor was he\\n\\naware that it had been denied.\\n\\n The petitioner was shuttled among several different\\n\\ncorrectional facilities following the imposition of sentence.\\n\\nAfter arriving at his destination in mid-July, he wrote to the\\n\\ndistrict court requesting a copy of his docket sheet. The\\n\\n\\n - 6 -\\n\\fpetitioner stated that he was \\\"in the process of a[n] appeal\\\" and\\n\\nneeded \\\"certain information.\\\" The court granted his request on\\n\\nAugust 2, 2016. Upon receiving the docket sheet, the petitioner\\n\\nrealized for the first time that a notice of appeal had not been\\n\\nfiled on his behalf. With the help of another inmate, he filed a\\n\\npro se petition to vacate his sentence pursuant to 28 U.S.C.\\n\\n§ 2255, claiming that trial counsel was ineffective for failing to\\n\\nfile a notice of appeal.\\n\\n The district court referred the section 2255 petition to\\n\\na magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.\\n\\n72(b)(1). After appointing post-conviction counsel, the\\n\\nmagistrate judge held an evidentiary hearing. Both the petitioner\\n\\nand trial counsel testified about the details of their two-minute\\n\\ncellblock conversation. According to the petitioner, he \\\"asked\\n\\nthe attorney why they had given me so much time\\\" and made it plain\\n\\nthat all along, he had \\\"wanted to appeal because the sentence was\\n\\ntoo high.\\\" The petitioner testified that trial counsel replied\\n\\nthat the sentence \\\"could not be appealed.\\\" When the petitioner\\n\\ninsisted that \\\"there had to be a way,\\\" trial counsel advised him\\n\\nto file a section 2255 petition.\\n\\n Trial counsel offered a somewhat different version. He\\n\\nrecalled \\\"discussing . . . the changes to the [PSI Report] and why\\n\\n[the court] finally made the determination that it did.\\\" He\\n\\nthought that he had \\\"mentioned\\\" filing a motion for\\n\\n\\n - 7 -\\n\\freconsideration, but he did not \\\"think [he and the petitioner]\\n\\never agreed to it.\\\" Importantly, trial counsel claimed to have\\n\\ntold the petitioner that although \\\"there was a waiver of appeal,\\n\\n. . . if [the petitioner] thought that there was anything that\\n\\ncould be appealed, that he had fourteen days and had to inform me\\n\\nso that I could file something.\\\"\\n\\n The magistrate judge reserved decision and subsequently\\n\\nissued a report and recommendation, recommending that the\\n\\npetitioner's ineffective assistance claim should be granted and\\n\\nthat he should be allowed an appropriate opportunity to perfect a\\n\\ndelayed appeal. The magistrate judge found that although the\\n\\npetitioner had not explicitly instructed trial counsel to file a\\n\\nnotice of appeal,3 he had manifestly demonstrated an interest in\\n\\nappealing sufficient to trigger trial counsel's constitutional\\n\\nduty to consult. The magistrate judge then concluded that, \\\"[e]ven\\n\\nfully crediting [trial counsel's] testimony, his discussion with\\n\\n[the petitioner at the cellblock] still did not meet the Supreme\\n\\nCourt's requirement for a consult.\\\" Building on this foundation,\\n\\nthe magistrate judge ruled that the Flores-Ortega presumption of\\n\\nprejudice, see 528 U.S. at 483, applied even though the petitioner\\n\\nhad signed an appeal waiver. Thus, what remained was \\\"to determine\\n\\n\\n 3 In his appellate briefs, the petitioner does not argue that\\nhe explicitly instructed trial counsel to file a notice of appeal.\\nConsequently, we deem any such argument waived. See United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 8 -\\n\\fwhether [the petitioner] showed . . . a reasonable probability\\n\\nthat he would have timely appealed.\\\" The magistrate judge then\\n\\nresolved this issue in the petitioner's favor and recommended\\n\\ngranting the section 2255 petition.\\n\\n The government objected, see Fed. R. Crim. P. 59(b)(2),\\n\\nand the district court, exercising de novo review, see Fed. R.\\n\\nCrim. P. 59(b)(3), and without holding a further evidentiary\\n\\nhearing, rejected the magistrate judge's recommendation. The\\n\\ncourt did not take issue with any of the magistrate judge's\\n\\nfindings of fact but, rather, held that Flores-Ortega's\\n\\npresumption of prejudice was inapposite because the petitioner had\\n\\nexecuted an appeal waiver. In the absence of such a presumption,\\n\\nthe petitioner could not (in the district court's view) show any\\n\\nprejudice flowing from trial counsel's failure to file a timely\\n\\nnotice of appeal. The court acknowledged, though, that if Flores-\\n\\nOrtega applied notwithstanding the appeal waiver, the petitioner\\n\\nmight be able to demonstrate that he had expressed an interest in\\n\\nappealing to trial counsel and that trial counsel's failure to\\n\\nconsult with him may have deprived him of an appeal he would\\n\\notherwise have taken.\\n\\n The district court issued a certificate of\\n\\nappealability, see 28 U.S.C. § 2253(c), and this timely appeal\\n\\nensued.\\n\\n\\n\\n\\n - 9 -\\n\\fII. ANALYSIS\\n\\n When a habeas petitioner appeals from the district\\n\\ncourt's denial of a section 2255 petition for post-conviction\\n\\nrelief following an evidentiary hearing, our review of the court's\\n\\nfactual findings is for clear error. See Casiano-Jiménez v. United\\n\\nStates, 817 F.3d 816, 820 (1st Cir. 2016). Questions of law, of\\n\\ncourse, engender de novo review. See id. Here, the magistrate\\n\\njudge made factual findings after an evidentiary hearing. The\\n\\ndistrict court — which did not have the benefit of hearing live\\n\\ntestimony — did not take issue with the magistrate judge's factual\\n\\nfindings, nor did it make any explicit factual findings of its\\n\\nown. Thus, we treat the district court as \\\"adopt[ing] (albeit\\n\\nimplicitly) the well-considered factual findings made by the\\n\\nMagistrate Judge.\\\" United States v. J.C.D., 861 F.3d 1, 5 (1st\\n\\nCir. 2017).\\n\\n Our starting point is the constitutional guarantee of\\n\\n\\\"the right to the effective assistance of counsel.\\\" Strickland v.\\n\\nWashington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,\\n\\n397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI. In\\n\\norder to succeed on an ineffective assistance claim, a \\\"defendant\\n\\nmust show both that counsel's performance was deficient and that\\n\\nit prejudiced his defense.\\\" Janosky v. St. Amand, 594 F.3d 39, 45\\n\\n(1st Cir. 2010) (citing Strickland, 466 U.S. at 687). In Flores-\\n\\nOrtega, the Supreme Court held that Strickland \\\"applies to claims\\n\\n\\n - 10 -\\n\\f. . . that counsel was constitutionally ineffective for failing to\\n\\nfile a notice of appeal.\\\" 528 U.S. at 477.\\n\\n With respect to the first element of the Strickland\\n\\ninquiry, the Flores-Ortega Court concluded that a defense\\n\\nattorney's representation is constitutionally deficient if the\\n\\nattorney either \\\"disregards specific instructions from the\\n\\ndefendant to file a notice of appeal\\\" or fails (under certain\\n\\ncircumstances) to consult with the defendant about an appeal. Id.\\n\\nat 480. Specifically, the Court held that \\\"counsel has a\\n\\nconstitutionally imposed duty to consult with the defendant about\\n\\nan appeal when there is reason to think either (1) that a rational\\n\\ndefendant would want to appeal (for example, because there are\\n\\nnonfrivolous grounds for appeal), or (2) that this particular\\n\\ndefendant reasonably demonstrated to counsel that he was\\n\\ninterested in appealing.\\\" Id. By \\\"consult,\\\" the Court clarified\\n\\nthat it meant \\\"advising the defendant about the advantages and\\n\\ndisadvantages of taking an appeal, and making a reasonable effort\\n\\nto discover the defendant's wishes.\\\" Id. at 478.\\n\\n With respect to the second element of the Strickland\\n\\ninquiry, the Flores-Ortega Court concluded that a defendant whose\\n\\nattorney fails to carry out a duty to consult with him about an\\n\\nappeal is entitled to a presumption of prejudice. See id. at 483.\\n\\nA defendant is not required to show that an appeal is likely to be\\n\\nsuccessful in order to be entitled to file an appeal out-of-time\\n\\n\\n - 11 -\\n\\fbased on ineffective assistance of counsel; he need only\\n\\ndemonstrate that \\\"counsel's constitutionally deficient performance\\n\\ndeprive[d] [him] of an appeal that he otherwise would have taken.\\\"\\n\\nId. at 484.\\n\\n Until very recently, federal courts were divided as to\\n\\nwhether the Flores-Ortega presumption of prejudice applies when a\\n\\ndefendant has executed an appeal waiver. Compare, e.g., Witthar\\n\\nv. United States, 793 F.3d 920, 923 (8th Cir. 2015) (holding\\n\\nFlores-Ortega applicable notwithstanding signed appeal waiver);\\n\\nCampusano v. United States, 442 F.3d 770, 776-77 (2d Cir. 2006)\\n\\n(same); Gomez-Diaz v. United States, 433 F.3d 788, 794 (11th Cir.\\n\\n2005) (same); United States v. Sandoval-Lopez, 409 F.3d 1193, 1198\\n\\n(9th Cir. 2005) (same), with Nunez v. United States, 546 F.3d 450,\\n\\n455 (7th Cir. 2008) (holding Flores-Ortega inapplicable because\\n\\ndefendant had signed appeal waiver); United States v. Mabry, 536\\n\\nF.3d 231, 241 (3d Cir. 2008) (same). But this question, previously\\n\\nthe subject of a circuit split, has now been settled. In Garza,\\n\\nthe Court held four-square that \\\"the presumption of prejudice\\n\\nrecognized in Flores-Ortega applies regardless of whether a\\n\\ndefendant has signed an appeal waiver.\\\" 139 S. Ct. at 749. The\\n\\nGarza Court explained that \\\"while signing an appeal waiver means\\n\\ngiving up some, many, or even most appellate claims, some claims\\n\\nnevertheless remain.\\\" Id. at 745; see United States v. Teeter,\\n\\n257 F.3d 14, 24-26 (1st Cir. 2001) (explaining that appeal waiver\\n\\n\\n - 12 -\\n\\fdoes not apply when waiver's scope was not clearly delineated,\\n\\nwhen plea was not knowing and voluntary, or when enforcing waiver\\n\\n\\\"would work a miscarriage of justice\\\"). The Court stressed that\\n\\nfiling a notice of appeal is \\\"a purely ministerial task that\\n\\nimposes no great burden on counsel.\\\" Garza, 139 S. Ct. at 745\\n\\n(quoting Flores-Ortega, 528 U.S. at 474).\\n\\n Although the defendant in Garza — unlike the petitioner\\n\\n— explicitly instructed his attorney to appeal, we see no reason\\n\\nwhy this distinction would affect Garza's holding that the Flores-\\n\\nOrtega presumption of prejudice \\\"applies regardless of whether a\\n\\ndefendant has signed an appeal waiver.\\\" Id. at 749. After all,\\n\\nFlores-Ortega involved a defendant who had not expressly asked his\\n\\nattorney to file an appeal. See 528 U.S. at 477. We hold that\\n\\nGarza applies and, thus, we proceed to analyze the petitioner's\\n\\nclaim under the Flores-Ortega framework.\\n\\n The first question is whether trial counsel had a duty\\n\\nto consult with the petitioner. As we already have explained, the\\n\\nduty to consult is triggered either when \\\"a rational defendant\\n\\nwould want to appeal\\\" or when a \\\"particular defendant reasonably\\n\\ndemonstrated to counsel that he was interested in appealing.\\\" Id.\\n\\nat 480. In this instance, the record makes manifest that the\\n\\npetitioner expressed to trial counsel an interest in appealing\\n\\nsufficient to activate trial counsel's duty to consult.\\n\\n\\n\\n\\n - 13 -\\n\\f We have yet to consider what qualifies as \\\"reasonably\\n\\ndemonstrat[ing]\\\" an interest in appealing. We agree with the\\n\\nweight of authority, though, that a defendant must have done more\\n\\nthan merely express his displeasure at sentencing. See United\\n\\nStates v. Cong Van Pham, 722 F.3d 320, 325 (5th Cir. 2013); Jackson\\n\\nv. Att'y Gen. of Nev., 268 F. App'x 615, 620 (9th Cir. 2008).\\n\\nInstead, the defendant must have \\\"said something to his counsel\\n\\nindicating that he had an interest in appealing.\\\" Cong Van Pham,\\n\\n722 F.3d at 325 (emphasis in original) (quoting United States v.\\n\\nCooper, 617 F.3d 307, 313 (4th Cir. 2010)). A duty to consult\\n\\narises, for example, \\\"when . . . a defendant who received\\n\\nconsecutive sentences asked 'about having time run together,'\\\" id.\\n\\n(quoting Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th\\n\\nCir. 2005)), or \\\"when a defendant asked after sentencing 'what's\\n\\nnext? What can we do now?,'\\\" id. (quoting Palacios v. United\\n\\nStates, 453 F. App'x 887, 889 (11th Cir. 2011) (per curiam)).\\n\\n Here, the magistrate judge credited the petitioner's\\n\\ntestimony that he asked trial counsel why he had gotten \\\"so much\\n\\ntime.\\\" In addition, it is undisputed that the petitioner and trial\\n\\ncounsel discussed the possibility of filing a motion for\\n\\nreconsideration. The government argues that a motion for\\n\\nreconsideration and an appeal are materially different. This\\n\\nargument is unavailing.\\n\\n\\n\\n\\n - 14 -\\n\\f To begin, \\\"[t]here is simply no such thing as a 'motion\\n\\nto reconsider' an otherwise final sentence.\\\" United States v.\\n\\nOrtiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014). In other words, the\\n\\nonly vehicle for post-conviction relief that trial counsel\\n\\ndiscussed with the petitioner did not actually exist — yet the\\n\\npetitioner had no way of knowing that. Unsurprisingly, then — as\\n\\nthe district court noted — the petitioner's testimony at the\\n\\nevidentiary hearing \\\"exhibited confusion\\\" and \\\"conflate[d] a\\n\\nnotice of appeal with a motion for reconsideration.\\\" Rojas-Medina\\n\\nv. United States, 290 F. Supp. 3d 145, 156-57 (D.P.R. 2018). A\\n\\ndefendant — especially a defendant who is not an English speaker\\n\\n— should not be required to use magic words in order to trigger\\n\\nhis counsel's duty to advise him about his right to appeal. See\\n\\nCong Van Pham, 722 F.3d at 325. What counts is the substance and\\n\\nthrust of what the defendant says to counsel.\\n\\n In the case at hand, the petitioner made it luminously\\n\\nclear that he was dissatisfied with the sentence imposed and\\n\\ninterested in whatever relief might be available. No more was\\n\\nexigible to ground the conclusion that the petitioner reasonably\\n\\ndemonstrated to his lawyer his interest in appealing, thus\\n\\ntriggering the lawyer's duty to consult with him about the\\n\\nadvantages and disadvantages of taking an appeal.\\n\\n A question remains as to whether trial counsel fulfilled\\n\\nhis duty to consult. We think not. Trial counsel's two-minute\\n\\n\\n - 15 -\\n\\fchat with the petitioner, without more, was insufficient to\\n\\ndischarge this duty. At a minimum, trial counsel was required to\\n\\nadvise his client about the pros and cons of taking an appeal, and\\n\\nthen to make a reasonable effort to ascertain his client's wishes.\\n\\nSee Flores-Ortega, 528 U.S. at 478. Even if we were to credit\\n\\ntrial counsel's testimony that he told the petitioner that \\\"if he\\n\\nthought . . . there was anything that could be appealed . . . he\\n\\nhad fourteen days\\\" within which to inform trial counsel that he\\n\\nwanted to appeal — a matter on which we take no view — that\\n\\nstatement did not shed any glimmer of light on the advantages or\\n\\ndisadvantages of taking an appeal.\\n\\n In an attempt to sidestep this hurdle, the government\\n\\npoints to conversations between the petitioner and trial counsel\\n\\nprior to sentencing, in which trial counsel \\\"advised [the\\n\\npetitioner] about the consequences of his appellate waiver.\\\" The\\n\\ngovernment asserts that, examining the totality of the\\n\\ncircumstances (including these pre-sentencing conversations),\\n\\n\\\"[trial counsel] did more than enough to effectively 'consult'\\n\\nwith [the petitioner] about an appeal.\\\"\\n\\n This assertion defies reason. Even if we were disposed\\n\\nto consider the pre-sentencing conversations, it appears that\\n\\ntrial counsel did no more than inform the petitioner that his\\n\\nappeal waiver would prevent him from filing an appeal. That may\\n\\nor may not have been true. See Teeter, 257 F.3d at 24-26\\n\\n\\n - 16 -\\n\\f(cataloguing exceptions to appeal waiver's preclusive effect). In\\n\\nall events, we agree with the Fifth Circuit that \\\"[c]ounsel's duty\\n\\nto [consult] requires more than simply notice that an appeal is\\n\\navailable or advice that an appeal may be unavailing.\\\" White v.\\n\\nJohnson, 180 F.3d 648, 652 (5th Cir. 1999).\\n\\n Our inquiry does not end with the conclusion that trial\\n\\ncounsel did not properly discharge his duty to consult. It remains\\n\\nfor us to determine whether counsel's constitutionally deficient\\n\\nperformance prejudiced the petitioner by \\\"depriv[ing] [him] of an\\n\\nappeal that he otherwise would have taken.\\\" Flores-Ortega, 528\\n\\nU.S. at 484. The Supreme Court has cautioned that although this\\n\\nquestion ultimately \\\"will turn on the facts of the particular\\n\\ncase[,] . . . evidence that there were nonfrivolous grounds for\\n\\nappeal or that the defendant promptly expressed a desire to appeal\\n\\nwill often be highly relevant in making this determination.\\\" Id.\\n\\nat 472.\\n\\n Here, the petitioner promptly expressed a desire to\\n\\nappeal. At his first possible opportunity to speak with counsel\\n\\nafter sentencing, he expressed dissatisfaction with his sentence\\n\\nand an interest in pursuing post-conviction relief. He then\\n\\nrequested his docket sheet from the district court soon after\\n\\narriving at his designated custodial facility. Upon realizing\\n\\nthat no appeal had been taken, he promptly sought assistance and\\n\\nperfected a section 2255 petition. Cf. Frazer, 430 F.3d at 712\\n\\n\\n - 17 -\\n\\f(noting that petitioner's \\\"tenacity in pursuing habeas relief\\n\\n. . . bolsters th[e] conclusion\\\" that he would have appealed).\\n\\n To cinch the matter, we find that the petitioner has at\\n\\nleast one nonfrivolous ground for appealing, notwithstanding his\\n\\nappeal waiver. He has made it pellucid that he wishes to\\n\\nchallenge, inter alia, the district court's determination that his\\n\\nsentence should run consecutive to, not concurrent with, any state\\n\\nsentence. In United States v. Maldonado-Escarfullery, we held\\n\\nthat an appeal of a consecutive sentence fell beyond the reach of\\n\\nan appeal waiver when \\\"the plea agreement did not make any\\n\\nrecommendation as to whether the sentence should run concurrently\\n\\nor consecutively.\\\" 689 F.3d 94, 97 n.2 (1st Cir. 2012). Several\\n\\nyears later, we reached the same conclusion in United States v.\\n\\nSantiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014).\\n\\n The petitioner has a plausible argument that the same is\\n\\ntrue here. The SENTENCING RECOMMENDATION provision in his case\\n\\ndid not specify whether his sentence should run concurrently or\\n\\nconsecutively, yet the district court chose the latter. It follows\\n\\nthat the petitioner's proposed challenge to the district court's\\n\\nrefusal to run his sentence concurrently with any state sentence\\n\\nthat might be imposed constitutes a nonfrivolous ground of appeal.\\n\\nAfter all, an argument need only be colorable to qualify as\\n\\nnonfrivolous, see United States v. Aguilera, 179 F.3d 604, 607\\n\\n(8th Cir. 1999); it does not have to be a sure winner.\\n\\n\\n - 18 -\\n\\f To say more would be superogatory. We hold that trial\\n\\ncounsel's failure to consult deprived the petitioner of an appeal\\n\\nthat he otherwise would have taken.\\n\\nIII. CONCLUSION\\n\\n We need go no further. For the reasons elucidated above,\\n\\nwe reverse the judgment of the district court and remand with\\n\\ninstructions to vacate the judgment in the underlying criminal\\n\\ncase and reenter it so that the petitioner may enjoy a fair\\n\\nopportunity to file a timely notice of appeal. For these purposes,\\n\\nthe district court shall follow the procedural roadmap charted by\\n\\nthis court in United States v. Torres-Otero, 232 F.3d 24, 31-32\\n\\n(1st Cir. 2000). Mandate shall issue forthwith; without prejudice,\\n\\nhowever, to the right of either party to file, within customary\\n\\ntime limits, petitions for rehearing or rehearing en banc.\\n\\n\\n\\n\\n - 19 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1968,"cells":{"id":{"kind":"number","value":4620990,"string":"4,620,990"},"name":{"kind":"string","value":"Valentine UNDERWOOD, Plaintiff, Appellee, v. Patrick BARRETT; Anthony Catalano; Jeffrey Clement; Brian Devlin ; Michael McDonald; Anthony Falciano; Leo Marchand ; Stuart McCulloch; William Shugrue, Defendants, Appellants, Douglas Bower ; Correctional Officer Sweets, F/K/A John Doe (Sweets); Donald Denomme; Jeffrey Fisher; Michael Grant; Jack Haughey; Jason Lanpher; Abby Nelligan; James Nelson; Dinarte Rego; James J. Saba; Sean Smith; Luis S. Spencer, Defendants."},"name_abbreviation":{"kind":"string","value":"Underwood v. Barrett"},"decision_date":{"kind":"string","value":"2019-05-17"},"docket_number":{"kind":"string","value":"16-1725P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Thompson, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 16-1725\\n\\n VALENTINE UNDERWOOD,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n PATRICK BARRETT; ANTHONY CATALANO; JEFFREY CLEMENT; BRIAN\\nDEVLIN; MICHAEL MCDONALD; ANTHONY FALCIANO; LEO MARCHAND; STUART\\n MCCULLOCH; WILLIAM SHUGRUE,\\n\\n Defendants, Appellants,\\n\\n DOUGLAS BOWER; CORRECTIONAL OFFICER SWEETS, f/k/a John Doe\\n (Sweets); DONALD DENOMME; JEFFREY FISHER; MICHAEL GRANT; JACK\\n HAUGHEY; JASON LANPHER; ABBY NELLIGAN; JAMES NELSON; DINARTE\\n REGO; JAMES J. SABA; SEAN SMITH; LUIS S. SPENCER,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. William G. Young, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Nancy Ankers White, Special Assistant Attorney General, and\\nCharles W. Anderson Jr., Sentencing Counsel, Department of\\nCorrection, on brief for appellants.\\n Valentine Underwood on brief pro se.\\n\\fMay 17, 2019\\n\\f Per curiam. When plaintiff refused to exit a prison\\n\\nrecreation cage to be brought to a new cell, prison officials used\\n\\noleoresin capsicum (\\\"pepper spray\\\"), physical force, and handcuffs\\n\\nto secure his compliance with the officials' orders. Plaintiff\\n\\nsubsequently brought this lawsuit under 42 U.S.C. § 1983, alleging\\n\\nthe use of excessive force in violation of the Eighth Amendment to\\n\\nthe U.S. Constitution.\\n\\n The prison officials eventually moved for summary\\n\\njudgment, contending that, at the very least, they were entitled\\n\\nto qualified immunity. See Gray v. Cummings, 917 F.3d 1, 10 (1st\\n\\nCir. 2019) (\\\"[G]overnment official[s] may invoke the defense of\\n\\nqualified immunity when [their] actions, though causing injury,\\n\\ndid 'not violate clearly established statutory or constitutional\\n\\nrights of which a reasonable person would have known.'\\\") (quoting\\n\\nConlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)). After\\n\\nthe district court denied the motion, the prison officials\\n\\nappealed.\\n\\n The record contains two versions of the relevant\\n\\ninteraction between plaintiff and prison officials as they\\n\\nattempted to move him from the recreation cage. One version is\\n\\nthe plaintiff's description of what happened. The other version\\n\\nis a videotape of the interaction taken by prison officials. No\\n\\none disputes the authenticity of the video evidence. Nor is there\\n\\n\\n - 3 -\\n\\fany claim that it was doctored in any way. The two versions\\n\\nconflict in several apparently crucial respects. Under plainly\\n\\ncontrolling law, the district court's job was to decide whether\\n\\nthe video evidence \\\"blatantly contradicted\\\" the plaintiff's\\n\\nversion of events, in which case the court's next job was to\\n\\ndetermine if, viewing the facts in the light depicted by the video\\n\\nevidence, the prison official violated plaintiff's constitutional\\n\\nrights. See Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting\\n\\nSaucier v. Katz, 533 U.S. 194, 201 (2001)); id. at 380-81 (\\\"When\\n\\nopposing parties tell two different stories, one of which is\\n\\nblatantly contradicted by the record, so that no reasonable jury\\n\\ncould believe it, a court should not adopt that version of the\\n\\nfacts for purposes of ruling on a motion for summary judgment.\\\").\\n\\n The district court conceded that the video evidence was\\n\\n\\\"compelling,\\\" but opted to reject the teaching of Scott, explaining\\n\\nthat it preferred the contrary view expressed in both Justice\\n\\nStevens's Scott dissent, see id. at 395 (Stevens, J., dissenting)\\n\\n(opining that the Court improperly \\\"usurped the jury's factfinding\\n\\nfunction\\\"), and in what the district court described as an\\n\\n\\\"academic consensus\\\" favoring the dissent.\\n\\n In so proceeding, the district court failed to fulfill\\n\\nits obligation to follow the law as set forth in controlling\\n\\nprecedent. Id. at 380 (majority opinion); Agostini v. Felton, 521\\n\\n\\n - 4 -\\n\\fU.S. 203, 238 (1997) (noting that the district courts are bound by\\n\\nSupreme Court decisions \\\"unless and until this Court reinterpreted\\n\\nthe binding precedent\\\"). Because the denial of the qualified\\n\\nimmunity defense was predicated on this error of law, it is\\n\\nappealable. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\\n\\n(holding that an order denying a dispositive motion that \\\"turned\\n\\non an issue of law and rejected the defense of qualified immunity\\\"\\n\\nwas a final decision for purposes of 28 U.S.C. § 1291). We\\n\\ntherefore vacate the district court's denial of the motion for\\n\\nsummary judgment, and remand the case to another district court\\n\\njudge for further proceedings consistent with the law. See United\\n\\nStates v. Hernández-Rodríguez, 443 F.3d 138, 148 (1st Cir. 2006)\\n\\n(remanding for proceedings before a different district court judge\\n\\nin order to allay \\\"the possible appearance of injustice\\\").\\n\\n\\n\\n\\n - 5 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4398243/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4620990/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Valentine UNDERWOOD, Plaintiff, Appellee, v. Patrick BARRETT; Anthony Catalano; Jeffrey Clement; Brian Devlin ; Michael McDonald; Anthony Falciano; Leo Marchand ; Stuart McCulloch; William Shugrue, Defendants, Appellants, Douglas Bower ; Correctional Officer Sweets, F/K/A John Doe (Sweets); Donald Denomme; Jeffrey Fisher; Michael Grant; Jack Haughey; Jason Lanpher; Abby Nelligan; James Nelson; Dinarte Rego; James J. Saba; Sean Smith; Luis S. Spencer, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 16-1725\n\n VALENTINE UNDERWOOD,\n\n Plaintiff, Appellee,\n\n v.\n\n PATRICK BARRETT; ANTHONY CATALANO; JEFFREY CLEMENT; BRIAN\nDEVLIN; MICHAEL MCDONALD; ANTHONY FALCIANO; LEO MARCHAND; STUART\n MCCULLOCH; WILLIAM SHUGRUE,\n\n Defendants, Appellants,\n\n DOUGLAS BOWER; CORRECTIONAL OFFICER SWEETS, f/k/a John Doe\n (Sweets); DONALD DENOMME; JEFFREY FISHER; MICHAEL GRANT; JACK\n HAUGHEY; JASON LANPHER; ABBY NELLIGAN; JAMES NELSON; DINARTE\n REGO; JAMES J. SABA; SEAN SMITH; LUIS S. SPENCER,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. William G. Young, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Nancy Ankers White, Special Assistant Attorney General, and\nCharles W. Anderson Jr., Sentencing Counsel, Department of\nCorrection, on brief for appellants.\n Valentine Underwood on brief pro se.\n\fMay 17, 2019\n\f Per curiam. When plaintiff refused to exit a prison\n\nrecreation cage to be brought to a new cell, prison officials used\n\noleoresin capsicum (\"pepper spray\"), physical force, and handcuffs\n\nto secure his compliance with the officials' orders. Plaintiff\n\nsubsequently brought this lawsuit under 42 U.S.C. § 1983, alleging\n\nthe use of excessive force in violation of the Eighth Amendment to\n\nthe U.S. Constitution.\n\n The prison officials eventually moved for summary\n\njudgment, contending that, at the very least, they were entitled\n\nto qualified immunity. See Gray v. Cummings, 917 F.3d 1, 10 (1st\n\nCir. 2019) (\"[G]overnment official[s] may invoke the defense of\n\nqualified immunity when [their] actions, though causing injury,\n\ndid 'not violate clearly established statutory or constitutional\n\nrights of which a reasonable person would have known.'\") (quoting\n\nConlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)). After\n\nthe district court denied the motion, the prison officials\n\nappealed.\n\n The record contains two versions of the relevant\n\ninteraction between plaintiff and prison officials as they\n\nattempted to move him from the recreation cage. One version is\n\nthe plaintiff's description of what happened. The other version\n\nis a videotape of the interaction taken by prison officials. No\n\none disputes the authenticity of the video evidence. Nor is there\n\n\n - 3 -\n\fany claim that it was doctored in any way. The two versions\n\nconflict in several apparently crucial respects. Under plainly\n\ncontrolling law, the district court's job was to decide whether\n\nthe video evidence \"blatantly contradicted\" the plaintiff's\n\nversion of events, in which case the court's next job was to\n\ndetermine if, viewing the facts in the light depicted by the video\n\nevidence, the prison official violated plaintiff's constitutional\n\nrights. See Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting\n\nSaucier v. Katz, 533 U.S. 194, 201 (2001)); id. at 380-81 (\"When\n\nopposing parties tell two different stories, one of which is\n\nblatantly contradicted by the record, so that no reasonable jury\n\ncould believe it, a court should not adopt that version of the\n\nfacts for purposes of ruling on a motion for summary judgment.\").\n\n The district court conceded that the video evidence was\n\n\"compelling,\" but opted to reject the teaching of Scott, explaining\n\nthat it preferred the contrary view expressed in both Justice\n\nStevens's Scott dissent, see id. at 395 (Stevens, J., dissenting)\n\n(opining that the Court improperly \"usurped the jury's factfinding\n\nfunction\"), and in what the district court described as an\n\n\"academic consensus\" favoring the dissent.\n\n In so proceeding, the district court failed to fulfill\n\nits obligation to follow the law as set forth in controlling\n\nprecedent. Id. at 380 (majority opinion); Agostini v. Felton, 521\n\n\n - 4 -\n\fU.S. 203, 238 (1997) (noting that the district courts are bound by\n\nSupreme Court decisions \"unless and until this Court reinterpreted\n\nthe binding precedent\"). Because the denial of the qualified\n\nimmunity defense was predicated on this error of law, it is\n\nappealable. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\n\n(holding that an order denying a dispositive motion that \"turned\n\non an issue of law and rejected the defense of qualified immunity\"\n\nwas a final decision for purposes of 28 U.S.C. § 1291). We\n\ntherefore vacate the district court's denial of the motion for\n\nsummary judgment, and remand the case to another district court\n\njudge for further proceedings consistent with the law. See United\n\nStates v. Hernández-Rodríguez, 443 F.3d 138, 148 (1st Cir. 2006)\n\n(remanding for proceedings before a different district court judge\n\nin order to allay \"the possible appearance of injustice\").\n\n\n\n\n - 5 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Valentine UNDERWOOD, Plaintiff, Appellee, v. Patrick BARRETT; Anthony Catalano; Jeffrey Clement; Brian Devlin ; Michael McDonald; Anthony Falciano; Leo Marchand ; Stuart McCulloch; William Shugrue, Defendants, Appellants, Douglas Bower ; Correctional Officer Sweets, F/K/A John Doe (Sweets); Donald Denomme; Jeffrey Fisher; Michael Grant; Jack Haughey; Jason Lanpher; Abby Nelligan; James Nelson; Dinarte Rego; James J. Saba; Sean Smith; Luis S. Spencer, Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 16-1725\\n\\n VALENTINE UNDERWOOD,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n PATRICK BARRETT; ANTHONY CATALANO; JEFFREY CLEMENT; BRIAN\\nDEVLIN; MICHAEL MCDONALD; ANTHONY FALCIANO; LEO MARCHAND; STUART\\n MCCULLOCH; WILLIAM SHUGRUE,\\n\\n Defendants, Appellants,\\n\\n DOUGLAS BOWER; CORRECTIONAL OFFICER SWEETS, f/k/a John Doe\\n (Sweets); DONALD DENOMME; JEFFREY FISHER; MICHAEL GRANT; JACK\\n HAUGHEY; JASON LANPHER; ABBY NELLIGAN; JAMES NELSON; DINARTE\\n REGO; JAMES J. SABA; SEAN SMITH; LUIS S. SPENCER,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. William G. Young, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Nancy Ankers White, Special Assistant Attorney General, and\\nCharles W. Anderson Jr., Sentencing Counsel, Department of\\nCorrection, on brief for appellants.\\n Valentine Underwood on brief pro se.\\n\\fMay 17, 2019\\n\\f Per curiam. When plaintiff refused to exit a prison\\n\\nrecreation cage to be brought to a new cell, prison officials used\\n\\noleoresin capsicum (\\\"pepper spray\\\"), physical force, and handcuffs\\n\\nto secure his compliance with the officials' orders. Plaintiff\\n\\nsubsequently brought this lawsuit under 42 U.S.C. § 1983, alleging\\n\\nthe use of excessive force in violation of the Eighth Amendment to\\n\\nthe U.S. Constitution.\\n\\n The prison officials eventually moved for summary\\n\\njudgment, contending that, at the very least, they were entitled\\n\\nto qualified immunity. See Gray v. Cummings, 917 F.3d 1, 10 (1st\\n\\nCir. 2019) (\\\"[G]overnment official[s] may invoke the defense of\\n\\nqualified immunity when [their] actions, though causing injury,\\n\\ndid 'not violate clearly established statutory or constitutional\\n\\nrights of which a reasonable person would have known.'\\\") (quoting\\n\\nConlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)). After\\n\\nthe district court denied the motion, the prison officials\\n\\nappealed.\\n\\n The record contains two versions of the relevant\\n\\ninteraction between plaintiff and prison officials as they\\n\\nattempted to move him from the recreation cage. One version is\\n\\nthe plaintiff's description of what happened. The other version\\n\\nis a videotape of the interaction taken by prison officials. No\\n\\none disputes the authenticity of the video evidence. Nor is there\\n\\n\\n - 3 -\\n\\fany claim that it was doctored in any way. The two versions\\n\\nconflict in several apparently crucial respects. Under plainly\\n\\ncontrolling law, the district court's job was to decide whether\\n\\nthe video evidence \\\"blatantly contradicted\\\" the plaintiff's\\n\\nversion of events, in which case the court's next job was to\\n\\ndetermine if, viewing the facts in the light depicted by the video\\n\\nevidence, the prison official violated plaintiff's constitutional\\n\\nrights. See Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting\\n\\nSaucier v. Katz, 533 U.S. 194, 201 (2001)); id. at 380-81 (\\\"When\\n\\nopposing parties tell two different stories, one of which is\\n\\nblatantly contradicted by the record, so that no reasonable jury\\n\\ncould believe it, a court should not adopt that version of the\\n\\nfacts for purposes of ruling on a motion for summary judgment.\\\").\\n\\n The district court conceded that the video evidence was\\n\\n\\\"compelling,\\\" but opted to reject the teaching of Scott, explaining\\n\\nthat it preferred the contrary view expressed in both Justice\\n\\nStevens's Scott dissent, see id. at 395 (Stevens, J., dissenting)\\n\\n(opining that the Court improperly \\\"usurped the jury's factfinding\\n\\nfunction\\\"), and in what the district court described as an\\n\\n\\\"academic consensus\\\" favoring the dissent.\\n\\n In so proceeding, the district court failed to fulfill\\n\\nits obligation to follow the law as set forth in controlling\\n\\nprecedent. Id. at 380 (majority opinion); Agostini v. Felton, 521\\n\\n\\n - 4 -\\n\\fU.S. 203, 238 (1997) (noting that the district courts are bound by\\n\\nSupreme Court decisions \\\"unless and until this Court reinterpreted\\n\\nthe binding precedent\\\"). Because the denial of the qualified\\n\\nimmunity defense was predicated on this error of law, it is\\n\\nappealable. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\\n\\n(holding that an order denying a dispositive motion that \\\"turned\\n\\non an issue of law and rejected the defense of qualified immunity\\\"\\n\\nwas a final decision for purposes of 28 U.S.C. § 1291). We\\n\\ntherefore vacate the district court's denial of the motion for\\n\\nsummary judgment, and remand the case to another district court\\n\\njudge for further proceedings consistent with the law. See United\\n\\nStates v. Hernández-Rodríguez, 443 F.3d 138, 148 (1st Cir. 2006)\\n\\n(remanding for proceedings before a different district court judge\\n\\nin order to allay \\\"the possible appearance of injustice\\\").\\n\\n\\n\\n\\n - 5 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1969,"cells":{"id":{"kind":"number","value":4622315,"string":"4,622,315"},"name":{"kind":"string","value":"Dylan O'RIORDAN, Petitioner, v. William P. BARR, Respondent."},"name_abbreviation":{"kind":"string","value":"O'Riordan v. Barr"},"decision_date":{"kind":"string","value":"2019-05-22"},"docket_number":{"kind":"string","value":"17-1990P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Selya, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1990\\n\\n DYLAN O'RIORDAN,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,*\\n\\n Respondent.\\n\\n\\n ON PETITION FOR REVIEW OF A FINAL ORDER OF\\n THE DEPARTMENT OF HOMELAND SECURITY\\n\\n\\n Before\\n\\n Torruella, Selya, and Barron,\\n Circuit Judges.\\n\\n\\n Anthony Marino, with whom Irish International Immigrant\\nCenter was on brief, for petitioner.\\n Joanna L. Watson, Trial Attorney, Office of Immigration\\nLitigation, with whom Chad A. Readler, Acting Assistant Attorney\\nGeneral, Civil Division, and Anthony P. Nicastro, Assistant\\nDirector, Office of Immigration Litigation were on brief, for\\nrespondent.\\n\\n\\n May 22, 2019\\n\\n\\n\\n\\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\\nWilliam P. Barr has been substituted for former Attorney General\\nJefferson Sessions, III, as the respondent.\\n\\f BARRON, Circuit Judge. Dylan O'Riordan is an Irish\\n\\ncitizen who had entered this country as a child and had been living\\n\\nin the United States for more than seven years when immigration\\n\\nofficials apprehended him. The government charged him with having\\n\\nbeen admitted to this country via the Visa Waiver Program (\\\"VWP\\\")\\n\\nand having stayed here beyond the 90-day period permitted by the\\n\\nvisa that he secured through that program. He now petitions for\\n\\nreview of the administrative order of removal that was issued in\\n\\naccord with the terms of the VWP, after the government found that\\n\\nhe had been admitted to the United States through the VWP as a\\n\\nchild and then overstayed his visa. Although O'Riordan's\\n\\ncircumstances are most unfortunate, we conclude that we must deny\\n\\nthe petition.\\n\\n I.\\n\\n The VWP allows \\\"a qualifying visitor [to] enter the\\n\\nUnited States without obtaining a visa, so long as a variety of\\n\\nstatutory and regulatory requirements are met.\\\" Bradley v. Att'y\\n\\nGen., 603 F.3d 235, 238 (3d Cir. 2010) (citing 8 U.S.C. § 1187).\\n\\nThe VWP is a reciprocal waiver program, which means that \\\"[a]n\\n\\nalien may not be provided a waiver [of the visa requirement from\\n\\nthe United States government] under the program unless the alien\\n\\nhas waived any right . . . to contest, other than on the basis of\\n\\nan application for asylum, any action for removal of the alien.\\\"\\n\\n8 U.S.C. § 1187(b). The VWP allows the alien visitor, per their\\n\\n\\n - 2 -\\n\\fvisa, to remain in the United States for 90 days after entry. Id.\\n\\n§ 1187(a)(1).\\n\\n Pursuant to the VWP, an alien must sign an \\\"I-94W,\\n\\nNonimmigrant Visa Waiver Arrival/Departure Form.\\\" 8 C.F.R.\\n\\n§ 217.2(b)(1). The alien must also complete a travel authorization\\n\\nunder the Electronic System for Travel Authorization (\\\"ESTA\\\").\\n\\nSee 8 C.F.R. § 217.5. On this ESTA form, there are fields to\\n\\nindicate whether the visitor has \\\"Waived Rights\\\" and whether the\\n\\nform was filled out by a \\\"Third Party.\\\"\\n\\n There is no I-94W waiver form related to O'Riordan's\\n\\ncase in the record. The record does contain an ESTA form\\n\\nconcerning his entry into the United States. That form, which is\\n\\ndated June 10, 2010, indicates \\\"Y\\\" in the field \\\"Waived Rights\\\"\\n\\nand \\\"Y\\\" in the field \\\"Third Party Indicator.\\\" O'Riordan was twelve\\n\\nyears old as of that date. At that time, his parents were both\\n\\nlawful permanent residents of the United States.\\n\\n During the more than seven years in which O'Riordan\\n\\nthereafter lived in the United States, he met Brenna Blanchette,\\n\\na United States citizen. He became engaged to her in January 2017\\n\\nwhile she was pregnant with his child, who was born in this\\n\\ncountry.\\n\\n On September 18, 2017, O'Riordan, then 19 years of age,\\n\\nwas taken into Department of Homeland Security (\\\"DHS\\\") custody.\\n\\nThe next day, he was served with a final administrative order of\\n\\n\\n - 3 -\\n\\fremoval. That order indicated that he had waived his right \\\"to\\n\\ncontest, other than on the basis of an application for asylum, any\\n\\naction for [his] removal\\\" through the VWP.\\n\\n In acknowledging service of the final order of removal,\\n\\nO'Riordan declined to contest his removal on certain grounds, such\\n\\nas U.S. citizen or lawful permanent resident status, entry through\\n\\nmeans other than the VWP, or compliance with the terms of the VWP.\\n\\nInstead, he indicated that he wished to contest his removal on\\n\\n\\\"Other\\\" grounds and explained that \\\"I came here as a child not\\n\\nknowing the consequences with my parents. I now have a [U.S.\\n\\ncitizen] child here in the United States who needs me.\\\" He also\\n\\nindicated that he \\\"wish[ed] to request Asylum, Withholding or\\n\\nDeferral of Removal.\\\"\\n\\n O'Riordan petitioned this court for review of his\\n\\nremoval order on October 6, 2017. The same day, O'Riordan moved\\n\\nin this Court to stay his removal. That motion was denied.\\n\\nO'Riordan then moved for reconsideration, but that motion was\\n\\ndenied as well.\\n\\n Because O'Riordan indicated that he intended to seek\\n\\nasylum or withholding of removal, he was put into withholding-only\\n\\nremoval proceedings on October 6, 2017. He moved to terminate\\n\\nthose proceedings on October 18, 2017. He explained that he did\\n\\n\\\"not understand[] the legal definitions of 'withholding' and\\n\\n'deferral'\\\" and so \\\"checked the box\\\" to seek such relief on the\\n\\n\\n - 4 -\\n\\funderstanding that doing so would allow him to seek review of his\\n\\nremoval.\\n\\n O'Riordan's petition for review in our Court and the\\n\\nwithholding-only proceedings were both pending when the government\\n\\nmoved to dismiss O'Riordan's petition for review for lack of\\n\\njurisdiction. The government did so on the ground that the\\n\\nadministrative order of removal was not final because the\\n\\nwithholding-only proceedings were ongoing.\\n\\n The withholding-only proceedings terminated while the\\n\\ngovernment's motion to dismiss the petition was pending before us.\\n\\nAs a result, the government moved to withdraw its motion to dismiss\\n\\nfor lack of jurisdiction. On November 9, 2017, we granted the\\n\\ngovernment's motion to withdraw its motion to dismiss.\\n\\n On November 28, 2017, DHS cancelled and reissued\\n\\nO'Riordan's prior Final Order of Removal. O'Riordan did not file\\n\\na petition for review of that order. Throughout this period,\\n\\nO'Riordan was detained pending his removal.\\n\\n On December 18, 2017, after the entry of his final order\\n\\nof removal, O'Riordan and Blanchette were married in a prison\\n\\nchapel. O'Riordan was ultimately removed to Ireland on February\\n\\n15, 2018.\\n\\n II.\\n\\n We first address our jurisdiction to review O'Riordan's\\n\\npetition. We begin with the issue of whether we have jurisdiction\\n\\n\\n - 5 -\\n\\funder Article III of the federal Constitution. We then consider\\n\\nwhether we have statutory jurisdiction.\\n\\n The constitutional issue concerning our jurisdiction\\n\\narises because, after O'Riordan's removal to Ireland, he made\\n\\ncertain statements to the press in which he appeared to indicate\\n\\nthat he did not intend to return to the United States. Because\\n\\n\\\"every federal appellate court has a special obligation to satisfy\\n\\nitself . . . of its own jurisdiction,\\\" we ordered O'Riordan to\\n\\nshow cause why the case should not be dismissed as moot. Arizonans\\n\\nfor Official English v. Arizona, 520 U.S. 43, 73 (1997) (quoting\\n\\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986))\\n\\n(internal quotation marks and citations omitted).\\n\\n O'Riordan, in response to our order, stated his interest\\n\\nin returning to the United States and explained that we \\\"continue[]\\n\\nto have the power to grant effectual relief by vacating his order\\n\\nof removal and ordering the government to provide a\\n\\nconstitutionally sufficient hearing in which Dylan may pursue\\n\\nrelief.\\\" The government, which bears the burden of establishing\\n\\nmootness, see Am. Civil Liberties Union of Mass. v. U.S. Conference\\n\\nof Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013), has made no\\n\\nattempt to rebut O'Riordan's representations to us regarding his\\n\\nintentions to return to the United States or otherwise argue that\\n\\nO'Riordan's case is moot. In light of O'Riordan's representations\\n\\nabout his intentions, and our power to grant O'Riordan \\\"effectual\\n\\n\\n - 6 -\\n\\frelief\\\" -- by vacating the removal order and thus permitting him\\n\\nto return to the United States and challenge his removal in the\\n\\ntype of hearing that he contends he is entitled to receive as a\\n\\nconstitutional matter -- his case is not moot. See Church of\\n\\nScientology of Cal. v. United States, 506 U.S. 9, 12 (1992).\\n\\n We must also consider the question of whether we have\\n\\nstatutory jurisdiction. The statutory issue concerning our\\n\\njurisdiction arises because \\\"petition[s] for review must be filed\\n\\nnot later than 30 days after the date of the final order of\\n\\nremoval.\\\" 8 U.S.C. § 1252(b)(1). O'Riordan timely petitioned for\\n\\nreview of the September 19, 2017 removal order. O'Riordan did\\n\\nnot, however, petition -- timely or otherwise -- for review of the\\n\\nremoval order that was subsequently issued on November 28, 2017.\\n\\n Despite this wrinkle concerning the timeliness of\\n\\nO'Riordan's petition, the parties agree that we do have statutory\\n\\njurisdiction. O'Riordan contends that we should not treat the\\n\\norder issued in November as if it were a distinct removal order at\\n\\nall, given what the record shows about how the government itself\\n\\ntreated it. He further contends that we may treat the September\\n\\norder as final, despite the fact that the withholding of removal\\n\\nproceedings were pending at the time of the petition from the\\n\\norder. The government, for its part, contends that we may treat\\n\\nthe petition for review from the September order as timely, even\\n\\nthough the government contends that order was not final. The\\n\\n\\n - 7 -\\n\\fgovernment contends that we may deem the petition for review to\\n\\nhave ripened upon the issuance of the subsequently issued removal\\n\\norder.\\n\\n We have not previously decided whether a prematurely\\n\\nfiled petition for review from an order of removal may be deemed\\n\\ntimely on a ripening theory, and other circuits are divided on\\n\\nthat issue. Compare Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d\\n\\n1307, 1308 (11th Cir. 2016) (adopting a ripening theory for\\n\\npremature petitions for review), Hounmenou v. Holder, 691 F.3d\\n\\n967, 970 n.1 (8th Cir. 2012) (same), Khan v. Att'y Gen., 691 F.3d\\n\\n488, 493 (3d Cir. 2012) (same), Herrera-Molina v. Holder, 597 F.3d\\n\\n128, 132 (2d Cir. 2010) (same), and G.S. v. Holder, 373 F. App'x\\n\\n836, 843 (10th Cir. 2010) (same), with Moreira v. Mukasey, 509\\n\\nF.3d 709, 713 (5th Cir. 2007) (rejecting a ripening theory for\\n\\npremature petitions for review), Jaber v. Gonzales, 486 F.3d 223,\\n\\n228-30 (6th Cir. 2007)(same), and Brion v. INS, 51 F. App'x 732,\\n\\n733 (9th Cir. 2002) (same). Nor are we aware of a case that has\\n\\napplied a ripening theory in a case in which the assertedly non-\\n\\nfinal order from which the petition for review was sought was\\n\\npurportedly cancelled and a new removal order was subsequently\\n\\nissued.\\n\\n However, we need not resolve the precise ground on which\\n\\nwe may treat this petition for review to be timely. Given our\\n\\nconclusion that the petition for review clearly must be denied on\\n\\n\\n - 8 -\\n\\fthe merits, we may simply proceed on the assumption that our\\n\\nstatutory jurisdiction is secure, without resolving definitively\\n\\nthat it is. See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir.\\n\\n2018).1\\n\\n III.\\n\\n We begin with O'Riordan's contention that the government\\n\\nfailed to present sufficient evidence of his removability. He\\n\\ncontends that the proper inquiry concerns whether \\\"clear,\\n\\nunequivocal, and convincing evidence,\\\" Woodby v. INS, 385 U.S.\\n\\n276, 277 (1966), establishes that he is subject to removal pursuant\\n\\nto 8 U.S.C. § 1187 for having overstayed his visa after having\\n\\nbeen admitted to the United States pursuant to the VWP.\\n\\n We may assume that the Woodby standard applies in a case\\n\\nlike this one -- a proposition that the government disputes -- and\\n\\nthat our review is thus for substantial evidence, see Urizar-\\n\\nCarrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013), as neither\\n\\nparty contends otherwise. We may do so because we conclude that,\\n\\n\\n\\n\\n1We do note that, although the parties agree that we have statutory\\njurisdiction, the divergent rationales they provide demonstrate\\nthat they differ as to which order we are reviewing pursuant to\\nO'Riordan's petition. O'Riordan contends that the operative order\\nof removal is, and has always been, the September 19, 2017 order\\nof removal. The government, by contrast, contends that order was\\ncanceled and replaced by the November 28, 2017 order. Because our\\nreasons for denying O'Riordan's petition for review on the merits\\nare the same regardless of which order forms the basis of our\\njurisdiction, we need not resolve this issue either.\\n\\n\\n - 9 -\\n\\feven under Woodby, there is no basis in the record for vacating\\n\\nthe administrative order of removal on evidentiary grounds.\\n\\n In reaching this conclusion, we note that O'Riordan does\\n\\nnot dispute that the record shows that, upon service of the\\n\\ngovernment's Notice of Intent to Issue a Final Administrative\\n\\nRemoval Order, he completed a form in which he indicated that he\\n\\ndid not intend to contest removal on the basis of threshold factual\\n\\nissues that would undermine the basis for finding him removable.\\n\\nThese issues included his being a U.S. citizen or a lawful\\n\\npermanent resident, his not having entered this country through\\n\\nthe VWP, or his being in compliance with the terms of his\\n\\nadmission. Nor does he dispute that the form provided an option\\n\\nwhereby O'Riordan could select \\\"Other\\\" and provide a basis for\\n\\ncontesting his removability, to which he responded by explaining\\n\\nonly that he came to the United States as a child without\\n\\nunderstanding the consequences and that he now has a U.S. citizen\\n\\nchild dependent. We note, too, that the record contains travel\\n\\ndocuments that show that O'Riordan flew to the United States with\\n\\nhis mother at the time that the ESTA form that is in the record\\n\\nwas filled out.\\n\\n To make the case that we are nonetheless compelled on\\n\\nthis record to find that the government has not met its evidentiary\\n\\nburden as to his removability, see Urizar-Carrascoza, 727 F.3d at\\n\\n31 (explaining that, when reviewing for substantial evidence, \\\"we\\n\\n\\n - 10 -\\n\\fuphold [factual] determinations unless 'any reasonable adjudicator\\n\\nwould be compelled to conclude to the contrary'\\\" (quoting 8 U.S.C.\\n\\n§ 1252(b)(4)(B))), O'Riordan points to the fact that there is no\\n\\nI-94W form pertaining to him in the record and to certain documents\\n\\nin the record that contain varying dates as to when he entered the\\n\\nUnited States as a child. But, in light of the evidence described\\n\\nabove concerning the circumstances of O'Riordan's entry, his own\\n\\nrepresentations on the form that he filled out when given notice\\n\\nof his administrative removal based on his having overstayed the\\n\\nvisa under the VWP, see Lima v. Holder, 758 F.3d 72, 81 (1st Cir.\\n\\n2014), and the fact that he makes no contention that he in fact\\n\\nentered the country through any means other than the VWP, those\\n\\nfeatures of the record that he highlights in support of his\\n\\nposition do not suffice to permit us to conclude that the\\n\\nadministrative order is not supportable as an evidentiary matter.\\n\\n IV.\\n\\n We thus turn to O'Riordan's procedural due process\\n\\nchallenge to the removal order under the Fifth Amendment to the\\n\\nUnited States Constitution. For purposes of this challenge,\\n\\nO'Riordan appears to accept that the record supports the conclusion\\n\\nthat he was admitted into the United States pursuant to the VWP,\\n\\nthat the waiver of the right to contest removal that is required\\n\\nof those who are admitted pursuant to the VWP was effected on his\\n\\n\\n\\n\\n - 11 -\\n\\fbehalf in his case, and that he then overstayed his visa in\\n\\nviolation of the terms of the VWP.\\n\\n Nevertheless, O'Riordan contends that, as a matter of\\n\\nconstitutional procedural due process, his administrative order of\\n\\nremoval must be vacated because he was permitted to contest it\\n\\nonly on certain limited grounds and then only in a removal\\n\\nproceeding that he characterizes as one in which there was not\\n\\n\\\"any hearing at all.\\\" In pressing this contention, he does not\\n\\ndispute that the right he claims to have -- the right to contest\\n\\nhis removal on other grounds and in what he contends would qualify\\n\\nas a \\\"hearing\\\" -- is subject to waiver. But, he contends, the\\n\\nwaiver of any right to such greater process than was effected in\\n\\naccord with the VWP is not enforceable in his case, because, at\\n\\nthe time of his admission into this country through the VWP, he\\n\\nwas a mere child and thus could not have knowingly and\\n\\nintelligently waived any such right. For, as he correctly notes,\\n\\na person ordinarily must knowingly and intelligently waive a\\n\\nfederal constitutional right -- such as a right to the process due\\n\\nunder the Fifth Amendment -- in order for that waiver to bar that\\n\\nperson from asserting that right. See Johnson v. Zerbst, 304 U.S.\\n\\n458, 464 (1938); see also Bayo v. Napolitano, 593 F.3d 495, 503-05\\n\\n(7th Cir. 2010); Nose v. Att'y Gen., 993 F.2d 75, 79 (5th Cir.\\n\\n1993).\\n\\n\\n\\n\\n - 12 -\\n\\f The government asserts in response that O'Riordan was\\n\\nnot entitled under Mathews v. Eldridge, 424 U.S. 319, 335 (1976),\\n\\nto more process than he received, and, we note, O'Riordan does not\\n\\naddress Mathews until his reply brief. See United States v.\\n\\nFreitas, 904 F.3d 11, 22 (1st Cir. 2018) (\\\"[A]n argument raised\\n\\nfor the first time in a reply brief comes too late to be preserved\\n\\non appeal.\\\" (internal quotation and alteration omitted)). Nor\\n\\ndoes he spell out the additional procedural protections that he\\n\\nclaims he was entitled to receive.\\n\\n But, even assuming both that the waiver's enforcement\\n\\nwould deprive O'Riordan of a right to a type of removal proceeding\\n\\nto which he claims that he otherwise would have been entitled as\\n\\na matter of constitutional due process and that the record fails\\n\\nto establish that he did knowingly and intelligently make a waiver\\n\\nof his right to such a proceeding, the question remains whether\\n\\nO'Riordan has shown prejudice from the due process violation that\\n\\nhe alleges. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 7 (1st\\n\\nCir. 2008) (\\\"A petitioner can carry his burden only by a specific\\n\\nshowing that the challenged practice likely affected the result of\\n\\nthe hearing.\\\"). O'Riordan appears to accept that he needs to show\\n\\nprejudice to succeed on his due process challenge. Yet, his\\n\\nchallenge comes up short on that score, as he fails either to\\n\\nestablish that he is entitled to what he refers to as a\\n\\n\\n\\n\\n - 13 -\\n\\f\\\"presumption of prejudice\\\" or to make a sufficient particularized\\n\\nshowing of prejudice.\\n\\n A.\\n\\n We begin with O'Riordan's contention that he is entitled\\n\\nto a presumption of prejudice, such that he need not make a\\n\\nparticularized showing of prejudice. We may assume that the\\n\\ngovernment has not rebutted any such presumption, for, as we\\n\\nexplain, we find that his attempt to establish that such a\\n\\npresumption applies is unpersuasive.\\n\\n O'Riordan relies in making this argument for\\n\\npresumptive prejudice on Roe v. Flores-Ortega, 528 U.S. 470\\n\\n(2000), which holds that a \\\"denial of [an] entire judicial\\n\\nproceeding itself . . . demands a presumption of prejudice\\\" for\\n\\npurposes of a Sixth Amendment ineffective assistance of counsel\\n\\nclaim, id. at 483, and on Hernandez v. Reno, 238 F.3d 50, 57 (1st\\n\\nCir. 2001), which addressed Flores-Ortega in the context of\\n\\nimmigration proceedings. In Hernandez, we considered an alien's\\n\\nchallenge to a denial by the Board of Immigration Appeals (\\\"BIA\\\")\\n\\nof a motion to reopen that was based on the contention that the\\n\\nalien's counsel had provided ineffective assistance by failing to\\n\\nappeal to the BIA from the immigration judge's deportation order.\\n\\nId. at 53.\\n\\n O'Riordan points out that, although Hernandez rejected\\n\\nthe petitioner's due process challenge in that case, it addressed\\n\\n\\n - 14 -\\n\\fFlores-Ortega by noting that \\\"[o]ur concern in the immigration\\n\\ncontext is not with the Sixth Amendment but with preserving a fair\\n\\nopportunity to have a . . . claim considered . . . .\\\" Id. at 57.\\n\\nHe also rightly notes that, in Hernandez, we went on to explain\\n\\nthat the alien in that case had been given \\\"a fair opportunity to\\n\\npresent his waiver case to the immigration judge,\\\" which included\\n\\n\\\"a hearing, substantial testimony, and a reasoned decision.\\\" Id.\\n\\nat 56 (emphasis in original). O'Riordan contends, based on these\\n\\nstatements, that Hernandez shows that he is entitled to at least\\n\\na presumption that he was prejudiced by being denied such process,\\n\\ndue to the type of proceedings that were used to effect his\\n\\nremoval.\\n\\n But, in Hernandez, we expressly declined to \\\"extend[]\\n\\nthe prejudice per se notion from criminal convictions to review of\\n\\nwaiver denials in deportations,\\\" id. at 57, that we would apply\\n\\nin the event of a \\\"waiver\\\" of a requested appeal from a criminal\\n\\nconviction due to the ineffective assistance of counsel, see\\n\\nFlores-Ortega, 528 U.S. at 483. Moreover, in declining to extend\\n\\nFlores-Ortega in that respect, we made no holding -- nor even\\n\\noffered any dicta -- as to when, if ever, a presumption of\\n\\nprejudice for a claimed lack of constitutionally adequate process\\n\\narising from the use of summary process in the immigration context\\n\\nmight be appropriate. See Hernandez, 238 F.3d at 56-57.\\n\\n\\n\\n\\n - 15 -\\n\\f Thus, Hernandez does not justify, much less require, the\\n\\nconclusion that the logic of Flores-Ortega must be extended to the\\n\\nimmigration context, such that we must presume that the waiver's\\n\\nenforcement in O'Riordan's case prejudiced him by depriving him of\\n\\na right to more than the process that he received. That is so,\\n\\neven if we assume both that the waiver's enforcement would deprive\\n\\nO'Riordan of the greater (though unspecified) process that he\\n\\ncontends he is entitled to as a matter of constitutional due\\n\\nprocess and that the presumption of prejudice that he contends\\n\\nthat we must apply has not been overcome here.\\n\\n O'Riordan does note that the Supreme Court has observed\\n\\nsince we decided Hernandez that removal is a \\\"severe 'penalty,'\\\"\\n\\nPadilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue\\n\\nTing v. United States, 149 U.S. 698, 740 (1893)), and that the\\n\\n\\\"right to remain in the United States may be more\\n\\nimportant . . . than any potential jail sentence,\\\" 3 Bender,\\n\\nCriminal Defense Techniques § 60A.01 (1999) (quoted in INS v. St.\\n\\nCyr, 533 U.S. 289, 322 (2001)). But, those statements were not\\n\\nmade in connection with due process challenges to immigration\\n\\nproceedings. They thus do not suffice to show that Flores-Ortega\\n\\nmust be extended in a way that Hernandez itself does not require.\\n\\nNor does O'Riordan develop any other argument as to why he is\\n\\nentitled to a presumption of prejudice.\\n\\n\\n\\n\\n - 16 -\\n\\f B.\\n\\n We turn, then, to O'Riordan's assertion that he can make\\n\\na particularized showing of prejudice. He relies on either of two\\n\\ngrounds to do so, notwithstanding that he did not mention either\\n\\none in filling out the form that he was given upon being served\\n\\nwith the Notice of Intent to Issue a Final Administrative Removal\\n\\nOrder. We find neither contention persuasive.\\n\\n 1.\\n\\n O'Riordan contends first that, \\\"[b]ut for the order of\\n\\nremoval and his detention, [he] would be eligible to adjust his\\n\\nstatus to that of a lawful permanent resident\\\" as the \\\"son of\\n\\nlawful permanent resident parents and the spouse of a U.S.\\n\\ncitizen[.]\\\" He thus contends that -- because he did not knowingly\\n\\nand intelligently make the waiver of his right to more process\\n\\nthan he received, which he contends includes the right to contest\\n\\nhis removal on grounds precluded by the enforcement of the\\n\\nwaiver -- he was prejudiced by having been denied the opportunity\\n\\nto contest his removal on the basis of his eligibility to adjust\\n\\nhis status, as that is a ground that he asserts otherwise \\\"would\\n\\nbe\\\" available to him to contest his removal.\\n\\n We start with the prejudice claim that O'Riordan makes\\n\\nbased on the lawful permanent resident status of his parents. They\\n\\nhad that status at the time of his admission to the United States\\n\\nthrough the VWP, and nothing in the record indicates that they\\n\\n\\n - 17 -\\n\\ffell out of that status at any point. O'Riordan thus contends\\n\\nthat -- but for the waiver's enforcement -- he would be eligible\\n\\nto apply for adjustment of status under 8 U.S.C. § 1255(c)(4).\\n\\n But, § 1255(c)(4) provides that individuals admitted\\n\\nunder the VWP may not apply for adjustment of status except on the\\n\\nbasis of their relationship to an \\\"immediate relative,\\\" id., which\\n\\n8 U.S.C. § 1151(b)(2)(A)(i) defines as, in relevant part, U.S.\\n\\ncitizen parents. As O'Riordan makes no argument, at least with\\n\\nrespect to his constitutional challenge, that he is not an\\n\\nindividual admitted under the VWP or that his parents are U.S.\\n\\ncitizens, we do not see how he would have been eligible to apply\\n\\nfor adjustment of status on the basis of his relationship to his\\n\\nparents at the \\\"hearing\\\" that he claims he was constitutionally\\n\\nentitled to receive but was not given.\\n\\n We turn, then, to the prejudice claim that O'Riordan\\n\\nmakes based on the U.S. citizenship status of his wife. Here, the\\n\\nproblem with his contention is somewhat different. The record\\n\\nshows that O'Riordan was not married to her at the time of the\\n\\nissuance of the administrative order of removal that he now seeks\\n\\nto have vacated. Thus, he could not have contested his removal on\\n\\nthe basis of his relationship to her at that time. 8 U.S.C.\\n\\n§§ 1151(b)(2)(A)(i), 1255(c)(4). Yet, he makes no argument as to\\n\\nwhy the decision to afford him a \\\"hearing\\\" at which he could have\\n\\ncontested removal on more grounds than he was permitted would have\\n\\n\\n - 18 -\\n\\fensured that he would have been married to her and thus that he\\n\\ncould have then contested his removal at that hearing on that\\n\\nbasis.\\n\\n 2.\\n\\n O'Riordan separately contends that he can make a\\n\\nparticularized showing of prejudice by asking us to focus on the\\n\\nmoment at which the choice was made to have him admitted into the\\n\\ncountry through the VWP. He notes that, at that time, he was a\\n\\nchild of lawful permanent residents of this country, and he points\\n\\nout that his parents could have, at that time or thereafter,\\n\\n\\\"petitioned\\\" for his admission independent of the VWP on the basis\\n\\nof their familial ties to him.\\n\\n But, he points out, his parents may not now similarly\\n\\npetition for his admission to this country on that basis, in light\\n\\nof 8 U.S.C. § 1255(a)(2), precisely because he was admitted into\\n\\nthis country through the VWP and then overstayed his visa. Thus,\\n\\nhe contends, due to the waiver's enforcement, and the resulting\\n\\nadministrative removal that triggered the bar to his admission to\\n\\nthe United States that remains in place under 8 U.S.C.\\n\\n§ 1255(a)(2), he is worse off than he would have been with respect\\n\\nto his ability to obtain admission to the United States than if he\\n\\nhad not been admitted pursuant to the VWP at all. Accordingly, he\\n\\ncontends, in this way, he can show the requisite prejudice from\\n\\n\\n\\n\\n - 19 -\\n\\fthe deprivation of process that he claims that he was subjected to\\n\\nby virtue of the issuance of the administrative order of removal.2\\n\\n The government counters this contention on the basis of\\n\\nBayo, 593 F.3d at 506, and Bradley, 603 F.3d at 240-41. The\\n\\ncircuit court in each of those cases determined that an alien\\n\\npotentially could show prejudice if the alien could have exercised\\n\\nthe option of not entering through the VWP and, by doing so,\\n\\nobtained admission into the United States through some other means\\n\\nthat would have enabled the alien to forge a relationship that\\n\\nwould have supplied a ground for contesting removal -- such as by\\n\\nseeking adjustment of status based on that relationship. See Bayo,\\n\\n593 F.3d at 506; Bradley, 603 F.3d at 240-41. The prejudice, the\\n\\ncourt went on to explain in each case, would then arise from the\\n\\nalien having been denied -- due to the enforcement of the\\n\\nwaiver -- the opportunity to contest the administrative order of\\n\\nremoval on the basis of that relationship. See Bradley, 603 F.3d\\n\\nat 241; Bayo, 593 F.3d at 506.\\n\\n\\n\\n\\n2 In pointing out that, in consequence of 8 U.S.C. § 1255(a)(2),\\nhe is now barred from obtaining adjustment of status so long as\\nthe 10-year bar on his admissibility into the United States remains\\nin place, O'Riordan does not argue that, wholly apart from the\\nprocedural due process challenge that he brings, it is\\nconstitutionally impermissible to impose such a ten-year bar on\\nalien adults who first entered this country through the VWP years\\nearlier as children with their family and thus might not have been\\naware of their immigration status during the years that followed\\nin which they lived in this country and developed ties to it.\\n\\n\\n - 20 -\\n\\f In each case, however, the circuit court determined that\\n\\nthe claim of prejudice was too speculative. See Bradley, 603 F.3d\\n\\nat 240; Bayo, 593 F.3d at 506. The problem that each court\\n\\nidentified inhered in the fact that it was highly uncertain that\\n\\nthe relationship on which the eligibility for adjustment of status\\n\\nwould have been based would have been forged at all, absent the\\n\\nalien first having been admitted to the country through the VWP.\\n\\nSee Bradley, 603 F.3d at 240; Bayo, 593 F.3d at 506.\\n\\n O'Riordan is right that, unlike in either Bayo or\\n\\nBradley, we need not speculate in O'Riordan's case whether, if he\\n\\nhad not been admitted into this country through the VWP, he would\\n\\nhave forged a relationship through which he then could have been\\n\\neligible for admission to this country. The relationship that\\n\\nwould provide the basis for his eligibility would be the one that\\n\\nhe had with his parent, who was a lawful permanent resident at the\\n\\ntime of his admission to this country as a child through the VWP\\n\\nand thereafter. See 8 U.S.C. § 1153(a)(1).\\n\\n This distinction notwithstanding, O'Riordan still has\\n\\nfailed to show how the fact that his parents could have chosen not\\n\\nto seek his admission through the VWP is relevant to his contention\\n\\nthat he was prejudiced by the deprivation of process that he\\n\\nidentifies. A necessary premise of the prejudice claim addressed\\n\\nin Bayo and Bradley was that the alien petitioner might not have\\n\\n\\n\\n\\n - 21 -\\n\\fentered this country through the VWP in the first place. It is\\n\\nno less a necessary premise of O'Riordan's related prejudice claim.\\n\\n But, that premise was plausible in Bayo and Bradley\\n\\nprecisely because the alien petitioner claimed in each case that\\n\\nhe had not made a knowing and intelligent waiver of the process\\n\\nrights that the VWP required him to make. That premise is not\\n\\nsimilarly plausible here.\\n\\n O'Riordan appears to accept -- at least for purposes of\\n\\nhis constitutional challenge -- that one of his parents did make\\n\\nthe choice to seek his admission, as a child, through the VWP.\\n\\nO'Riordan does not explain how his inability to knowingly and\\n\\nintelligently effect the waiver that his parent made on his behalf\\n\\nat that time bears on the choice that the parent made to seek his\\n\\nadmission through the VWP at that time. Thus, we do not see what\\n\\nreason we have to posit an alternative scenario for purposes of\\n\\nassessing prejudice -- such as was considered in Bayo and\\n\\nBradley -- in which he would not have entered this country through\\n\\nthe VWP and thus might be thought to have been prejudiced by having\\n\\nbeen removed through the administrative proceeding afforded to\\n\\nthose who have been admitted in that way. Accordingly, this more\\n\\nparticularized ground for showing prejudice necessarily fails.\\n\\n V.\\n\\n The petition for review is denied.\\n\\n\\n\\n\\n - 22 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399568/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622315/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dylan O'RIORDAN, Petitioner, v. William P. BARR, Respondent.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1990\n\n DYLAN O'RIORDAN,\n\n Petitioner,\n\n v.\n\n WILLIAM P. BARR,*\n\n Respondent.\n\n\n ON PETITION FOR REVIEW OF A FINAL ORDER OF\n THE DEPARTMENT OF HOMELAND SECURITY\n\n\n Before\n\n Torruella, Selya, and Barron,\n Circuit Judges.\n\n\n Anthony Marino, with whom Irish International Immigrant\nCenter was on brief, for petitioner.\n Joanna L. Watson, Trial Attorney, Office of Immigration\nLitigation, with whom Chad A. Readler, Acting Assistant Attorney\nGeneral, Civil Division, and Anthony P. Nicastro, Assistant\nDirector, Office of Immigration Litigation were on brief, for\nrespondent.\n\n\n May 22, 2019\n\n\n\n\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\nWilliam P. Barr has been substituted for former Attorney General\nJefferson Sessions, III, as the respondent.\n\f BARRON, Circuit Judge. Dylan O'Riordan is an Irish\n\ncitizen who had entered this country as a child and had been living\n\nin the United States for more than seven years when immigration\n\nofficials apprehended him. The government charged him with having\n\nbeen admitted to this country via the Visa Waiver Program (\"VWP\")\n\nand having stayed here beyond the 90-day period permitted by the\n\nvisa that he secured through that program. He now petitions for\n\nreview of the administrative order of removal that was issued in\n\naccord with the terms of the VWP, after the government found that\n\nhe had been admitted to the United States through the VWP as a\n\nchild and then overstayed his visa. Although O'Riordan's\n\ncircumstances are most unfortunate, we conclude that we must deny\n\nthe petition.\n\n I.\n\n The VWP allows \"a qualifying visitor [to] enter the\n\nUnited States without obtaining a visa, so long as a variety of\n\nstatutory and regulatory requirements are met.\" Bradley v. Att'y\n\nGen., 603 F.3d 235, 238 (3d Cir. 2010) (citing 8 U.S.C. § 1187).\n\nThe VWP is a reciprocal waiver program, which means that \"[a]n\n\nalien may not be provided a waiver [of the visa requirement from\n\nthe United States government] under the program unless the alien\n\nhas waived any right . . . to contest, other than on the basis of\n\nan application for asylum, any action for removal of the alien.\"\n\n8 U.S.C. § 1187(b). The VWP allows the alien visitor, per their\n\n\n - 2 -\n\fvisa, to remain in the United States for 90 days after entry. Id.\n\n§ 1187(a)(1).\n\n Pursuant to the VWP, an alien must sign an \"I-94W,\n\nNonimmigrant Visa Waiver Arrival/Departure Form.\" 8 C.F.R.\n\n§ 217.2(b)(1). The alien must also complete a travel authorization\n\nunder the Electronic System for Travel Authorization (\"ESTA\").\n\nSee 8 C.F.R. § 217.5. On this ESTA form, there are fields to\n\nindicate whether the visitor has \"Waived Rights\" and whether the\n\nform was filled out by a \"Third Party.\"\n\n There is no I-94W waiver form related to O'Riordan's\n\ncase in the record. The record does contain an ESTA form\n\nconcerning his entry into the United States. That form, which is\n\ndated June 10, 2010, indicates \"Y\" in the field \"Waived Rights\"\n\nand \"Y\" in the field \"Third Party Indicator.\" O'Riordan was twelve\n\nyears old as of that date. At that time, his parents were both\n\nlawful permanent residents of the United States.\n\n During the more than seven years in which O'Riordan\n\nthereafter lived in the United States, he met Brenna Blanchette,\n\na United States citizen. He became engaged to her in January 2017\n\nwhile she was pregnant with his child, who was born in this\n\ncountry.\n\n On September 18, 2017, O'Riordan, then 19 years of age,\n\nwas taken into Department of Homeland Security (\"DHS\") custody.\n\nThe next day, he was served with a final administrative order of\n\n\n - 3 -\n\fremoval. That order indicated that he had waived his right \"to\n\ncontest, other than on the basis of an application for asylum, any\n\naction for [his] removal\" through the VWP.\n\n In acknowledging service of the final order of removal,\n\nO'Riordan declined to contest his removal on certain grounds, such\n\nas U.S. citizen or lawful permanent resident status, entry through\n\nmeans other than the VWP, or compliance with the terms of the VWP.\n\nInstead, he indicated that he wished to contest his removal on\n\n\"Other\" grounds and explained that \"I came here as a child not\n\nknowing the consequences with my parents. I now have a [U.S.\n\ncitizen] child here in the United States who needs me.\" He also\n\nindicated that he \"wish[ed] to request Asylum, Withholding or\n\nDeferral of Removal.\"\n\n O'Riordan petitioned this court for review of his\n\nremoval order on October 6, 2017. The same day, O'Riordan moved\n\nin this Court to stay his removal. That motion was denied.\n\nO'Riordan then moved for reconsideration, but that motion was\n\ndenied as well.\n\n Because O'Riordan indicated that he intended to seek\n\nasylum or withholding of removal, he was put into withholding-only\n\nremoval proceedings on October 6, 2017. He moved to terminate\n\nthose proceedings on October 18, 2017. He explained that he did\n\n\"not understand[] the legal definitions of 'withholding' and\n\n'deferral'\" and so \"checked the box\" to seek such relief on the\n\n\n - 4 -\n\funderstanding that doing so would allow him to seek review of his\n\nremoval.\n\n O'Riordan's petition for review in our Court and the\n\nwithholding-only proceedings were both pending when the government\n\nmoved to dismiss O'Riordan's petition for review for lack of\n\njurisdiction. The government did so on the ground that the\n\nadministrative order of removal was not final because the\n\nwithholding-only proceedings were ongoing.\n\n The withholding-only proceedings terminated while the\n\ngovernment's motion to dismiss the petition was pending before us.\n\nAs a result, the government moved to withdraw its motion to dismiss\n\nfor lack of jurisdiction. On November 9, 2017, we granted the\n\ngovernment's motion to withdraw its motion to dismiss.\n\n On November 28, 2017, DHS cancelled and reissued\n\nO'Riordan's prior Final Order of Removal. O'Riordan did not file\n\na petition for review of that order. Throughout this period,\n\nO'Riordan was detained pending his removal.\n\n On December 18, 2017, after the entry of his final order\n\nof removal, O'Riordan and Blanchette were married in a prison\n\nchapel. O'Riordan was ultimately removed to Ireland on February\n\n15, 2018.\n\n II.\n\n We first address our jurisdiction to review O'Riordan's\n\npetition. We begin with the issue of whether we have jurisdiction\n\n\n - 5 -\n\funder Article III of the federal Constitution. We then consider\n\nwhether we have statutory jurisdiction.\n\n The constitutional issue concerning our jurisdiction\n\narises because, after O'Riordan's removal to Ireland, he made\n\ncertain statements to the press in which he appeared to indicate\n\nthat he did not intend to return to the United States. Because\n\n\"every federal appellate court has a special obligation to satisfy\n\nitself . . . of its own jurisdiction,\" we ordered O'Riordan to\n\nshow cause why the case should not be dismissed as moot. Arizonans\n\nfor Official English v. Arizona, 520 U.S. 43, 73 (1997) (quoting\n\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986))\n\n(internal quotation marks and citations omitted).\n\n O'Riordan, in response to our order, stated his interest\n\nin returning to the United States and explained that we \"continue[]\n\nto have the power to grant effectual relief by vacating his order\n\nof removal and ordering the government to provide a\n\nconstitutionally sufficient hearing in which Dylan may pursue\n\nrelief.\" The government, which bears the burden of establishing\n\nmootness, see Am. Civil Liberties Union of Mass. v. U.S. Conference\n\nof Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013), has made no\n\nattempt to rebut O'Riordan's representations to us regarding his\n\nintentions to return to the United States or otherwise argue that\n\nO'Riordan's case is moot. In light of O'Riordan's representations\n\nabout his intentions, and our power to grant O'Riordan \"effectual\n\n\n - 6 -\n\frelief\" -- by vacating the removal order and thus permitting him\n\nto return to the United States and challenge his removal in the\n\ntype of hearing that he contends he is entitled to receive as a\n\nconstitutional matter -- his case is not moot. See Church of\n\nScientology of Cal. v. United States, 506 U.S. 9, 12 (1992).\n\n We must also consider the question of whether we have\n\nstatutory jurisdiction. The statutory issue concerning our\n\njurisdiction arises because \"petition[s] for review must be filed\n\nnot later than 30 days after the date of the final order of\n\nremoval.\" 8 U.S.C. § 1252(b)(1). O'Riordan timely petitioned for\n\nreview of the September 19, 2017 removal order. O'Riordan did\n\nnot, however, petition -- timely or otherwise -- for review of the\n\nremoval order that was subsequently issued on November 28, 2017.\n\n Despite this wrinkle concerning the timeliness of\n\nO'Riordan's petition, the parties agree that we do have statutory\n\njurisdiction. O'Riordan contends that we should not treat the\n\norder issued in November as if it were a distinct removal order at\n\nall, given what the record shows about how the government itself\n\ntreated it. He further contends that we may treat the September\n\norder as final, despite the fact that the withholding of removal\n\nproceedings were pending at the time of the petition from the\n\norder. The government, for its part, contends that we may treat\n\nthe petition for review from the September order as timely, even\n\nthough the government contends that order was not final. The\n\n\n - 7 -\n\fgovernment contends that we may deem the petition for review to\n\nhave ripened upon the issuance of the subsequently issued removal\n\norder.\n\n We have not previously decided whether a prematurely\n\nfiled petition for review from an order of removal may be deemed\n\ntimely on a ripening theory, and other circuits are divided on\n\nthat issue. Compare Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d\n\n1307, 1308 (11th Cir. 2016) (adopting a ripening theory for\n\npremature petitions for review), Hounmenou v. Holder, 691 F.3d\n\n967, 970 n.1 (8th Cir. 2012) (same), Khan v. Att'y Gen., 691 F.3d\n\n488, 493 (3d Cir. 2012) (same), Herrera-Molina v. Holder, 597 F.3d\n\n128, 132 (2d Cir. 2010) (same), and G.S. v. Holder, 373 F. App'x\n\n836, 843 (10th Cir. 2010) (same), with Moreira v. Mukasey, 509\n\nF.3d 709, 713 (5th Cir. 2007) (rejecting a ripening theory for\n\npremature petitions for review), Jaber v. Gonzales, 486 F.3d 223,\n\n228-30 (6th Cir. 2007)(same), and Brion v. INS, 51 F. App'x 732,\n\n733 (9th Cir. 2002) (same). Nor are we aware of a case that has\n\napplied a ripening theory in a case in which the assertedly non-\n\nfinal order from which the petition for review was sought was\n\npurportedly cancelled and a new removal order was subsequently\n\nissued.\n\n However, we need not resolve the precise ground on which\n\nwe may treat this petition for review to be timely. Given our\n\nconclusion that the petition for review clearly must be denied on\n\n\n - 8 -\n\fthe merits, we may simply proceed on the assumption that our\n\nstatutory jurisdiction is secure, without resolving definitively\n\nthat it is. See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir.\n\n2018).1\n\n III.\n\n We begin with O'Riordan's contention that the government\n\nfailed to present sufficient evidence of his removability. He\n\ncontends that the proper inquiry concerns whether \"clear,\n\nunequivocal, and convincing evidence,\" Woodby v. INS, 385 U.S.\n\n276, 277 (1966), establishes that he is subject to removal pursuant\n\nto 8 U.S.C. § 1187 for having overstayed his visa after having\n\nbeen admitted to the United States pursuant to the VWP.\n\n We may assume that the Woodby standard applies in a case\n\nlike this one -- a proposition that the government disputes -- and\n\nthat our review is thus for substantial evidence, see Urizar-\n\nCarrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013), as neither\n\nparty contends otherwise. We may do so because we conclude that,\n\n\n\n\n1We do note that, although the parties agree that we have statutory\njurisdiction, the divergent rationales they provide demonstrate\nthat they differ as to which order we are reviewing pursuant to\nO'Riordan's petition. O'Riordan contends that the operative order\nof removal is, and has always been, the September 19, 2017 order\nof removal. The government, by contrast, contends that order was\ncanceled and replaced by the November 28, 2017 order. Because our\nreasons for denying O'Riordan's petition for review on the merits\nare the same regardless of which order forms the basis of our\njurisdiction, we need not resolve this issue either.\n\n\n - 9 -\n\feven under Woodby, there is no basis in the record for vacating\n\nthe administrative order of removal on evidentiary grounds.\n\n In reaching this conclusion, we note that O'Riordan does\n\nnot dispute that the record shows that, upon service of the\n\ngovernment's Notice of Intent to Issue a Final Administrative\n\nRemoval Order, he completed a form in which he indicated that he\n\ndid not intend to contest removal on the basis of threshold factual\n\nissues that would undermine the basis for finding him removable.\n\nThese issues included his being a U.S. citizen or a lawful\n\npermanent resident, his not having entered this country through\n\nthe VWP, or his being in compliance with the terms of his\n\nadmission. Nor does he dispute that the form provided an option\n\nwhereby O'Riordan could select \"Other\" and provide a basis for\n\ncontesting his removability, to which he responded by explaining\n\nonly that he came to the United States as a child without\n\nunderstanding the consequences and that he now has a U.S. citizen\n\nchild dependent. We note, too, that the record contains travel\n\ndocuments that show that O'Riordan flew to the United States with\n\nhis mother at the time that the ESTA form that is in the record\n\nwas filled out.\n\n To make the case that we are nonetheless compelled on\n\nthis record to find that the government has not met its evidentiary\n\nburden as to his removability, see Urizar-Carrascoza, 727 F.3d at\n\n31 (explaining that, when reviewing for substantial evidence, \"we\n\n\n - 10 -\n\fuphold [factual] determinations unless 'any reasonable adjudicator\n\nwould be compelled to conclude to the contrary'\" (quoting 8 U.S.C.\n\n§ 1252(b)(4)(B))), O'Riordan points to the fact that there is no\n\nI-94W form pertaining to him in the record and to certain documents\n\nin the record that contain varying dates as to when he entered the\n\nUnited States as a child. But, in light of the evidence described\n\nabove concerning the circumstances of O'Riordan's entry, his own\n\nrepresentations on the form that he filled out when given notice\n\nof his administrative removal based on his having overstayed the\n\nvisa under the VWP, see Lima v. Holder, 758 F.3d 72, 81 (1st Cir.\n\n2014), and the fact that he makes no contention that he in fact\n\nentered the country through any means other than the VWP, those\n\nfeatures of the record that he highlights in support of his\n\nposition do not suffice to permit us to conclude that the\n\nadministrative order is not supportable as an evidentiary matter.\n\n IV.\n\n We thus turn to O'Riordan's procedural due process\n\nchallenge to the removal order under the Fifth Amendment to the\n\nUnited States Constitution. For purposes of this challenge,\n\nO'Riordan appears to accept that the record supports the conclusion\n\nthat he was admitted into the United States pursuant to the VWP,\n\nthat the waiver of the right to contest removal that is required\n\nof those who are admitted pursuant to the VWP was effected on his\n\n\n\n\n - 11 -\n\fbehalf in his case, and that he then overstayed his visa in\n\nviolation of the terms of the VWP.\n\n Nevertheless, O'Riordan contends that, as a matter of\n\nconstitutional procedural due process, his administrative order of\n\nremoval must be vacated because he was permitted to contest it\n\nonly on certain limited grounds and then only in a removal\n\nproceeding that he characterizes as one in which there was not\n\n\"any hearing at all.\" In pressing this contention, he does not\n\ndispute that the right he claims to have -- the right to contest\n\nhis removal on other grounds and in what he contends would qualify\n\nas a \"hearing\" -- is subject to waiver. But, he contends, the\n\nwaiver of any right to such greater process than was effected in\n\naccord with the VWP is not enforceable in his case, because, at\n\nthe time of his admission into this country through the VWP, he\n\nwas a mere child and thus could not have knowingly and\n\nintelligently waived any such right. For, as he correctly notes,\n\na person ordinarily must knowingly and intelligently waive a\n\nfederal constitutional right -- such as a right to the process due\n\nunder the Fifth Amendment -- in order for that waiver to bar that\n\nperson from asserting that right. See Johnson v. Zerbst, 304 U.S.\n\n458, 464 (1938); see also Bayo v. Napolitano, 593 F.3d 495, 503-05\n\n(7th Cir. 2010); Nose v. Att'y Gen., 993 F.2d 75, 79 (5th Cir.\n\n1993).\n\n\n\n\n - 12 -\n\f The government asserts in response that O'Riordan was\n\nnot entitled under Mathews v. Eldridge, 424 U.S. 319, 335 (1976),\n\nto more process than he received, and, we note, O'Riordan does not\n\naddress Mathews until his reply brief. See United States v.\n\nFreitas, 904 F.3d 11, 22 (1st Cir. 2018) (\"[A]n argument raised\n\nfor the first time in a reply brief comes too late to be preserved\n\non appeal.\" (internal quotation and alteration omitted)). Nor\n\ndoes he spell out the additional procedural protections that he\n\nclaims he was entitled to receive.\n\n But, even assuming both that the waiver's enforcement\n\nwould deprive O'Riordan of a right to a type of removal proceeding\n\nto which he claims that he otherwise would have been entitled as\n\na matter of constitutional due process and that the record fails\n\nto establish that he did knowingly and intelligently make a waiver\n\nof his right to such a proceeding, the question remains whether\n\nO'Riordan has shown prejudice from the due process violation that\n\nhe alleges. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 7 (1st\n\nCir. 2008) (\"A petitioner can carry his burden only by a specific\n\nshowing that the challenged practice likely affected the result of\n\nthe hearing.\"). O'Riordan appears to accept that he needs to show\n\nprejudice to succeed on his due process challenge. Yet, his\n\nchallenge comes up short on that score, as he fails either to\n\nestablish that he is entitled to what he refers to as a\n\n\n\n\n - 13 -\n\f\"presumption of prejudice\" or to make a sufficient particularized\n\nshowing of prejudice.\n\n A.\n\n We begin with O'Riordan's contention that he is entitled\n\nto a presumption of prejudice, such that he need not make a\n\nparticularized showing of prejudice. We may assume that the\n\ngovernment has not rebutted any such presumption, for, as we\n\nexplain, we find that his attempt to establish that such a\n\npresumption applies is unpersuasive.\n\n O'Riordan relies in making this argument for\n\npresumptive prejudice on Roe v. Flores-Ortega, 528 U.S. 470\n\n(2000), which holds that a \"denial of [an] entire judicial\n\nproceeding itself . . . demands a presumption of prejudice\" for\n\npurposes of a Sixth Amendment ineffective assistance of counsel\n\nclaim, id. at 483, and on Hernandez v. Reno, 238 F.3d 50, 57 (1st\n\nCir. 2001), which addressed Flores-Ortega in the context of\n\nimmigration proceedings. In Hernandez, we considered an alien's\n\nchallenge to a denial by the Board of Immigration Appeals (\"BIA\")\n\nof a motion to reopen that was based on the contention that the\n\nalien's counsel had provided ineffective assistance by failing to\n\nappeal to the BIA from the immigration judge's deportation order.\n\nId. at 53.\n\n O'Riordan points out that, although Hernandez rejected\n\nthe petitioner's due process challenge in that case, it addressed\n\n\n - 14 -\n\fFlores-Ortega by noting that \"[o]ur concern in the immigration\n\ncontext is not with the Sixth Amendment but with preserving a fair\n\nopportunity to have a . . . claim considered . . . .\" Id. at 57.\n\nHe also rightly notes that, in Hernandez, we went on to explain\n\nthat the alien in that case had been given \"a fair opportunity to\n\npresent his waiver case to the immigration judge,\" which included\n\n\"a hearing, substantial testimony, and a reasoned decision.\" Id.\n\nat 56 (emphasis in original). O'Riordan contends, based on these\n\nstatements, that Hernandez shows that he is entitled to at least\n\na presumption that he was prejudiced by being denied such process,\n\ndue to the type of proceedings that were used to effect his\n\nremoval.\n\n But, in Hernandez, we expressly declined to \"extend[]\n\nthe prejudice per se notion from criminal convictions to review of\n\nwaiver denials in deportations,\" id. at 57, that we would apply\n\nin the event of a \"waiver\" of a requested appeal from a criminal\n\nconviction due to the ineffective assistance of counsel, see\n\nFlores-Ortega, 528 U.S. at 483. Moreover, in declining to extend\n\nFlores-Ortega in that respect, we made no holding -- nor even\n\noffered any dicta -- as to when, if ever, a presumption of\n\nprejudice for a claimed lack of constitutionally adequate process\n\narising from the use of summary process in the immigration context\n\nmight be appropriate. See Hernandez, 238 F.3d at 56-57.\n\n\n\n\n - 15 -\n\f Thus, Hernandez does not justify, much less require, the\n\nconclusion that the logic of Flores-Ortega must be extended to the\n\nimmigration context, such that we must presume that the waiver's\n\nenforcement in O'Riordan's case prejudiced him by depriving him of\n\na right to more than the process that he received. That is so,\n\neven if we assume both that the waiver's enforcement would deprive\n\nO'Riordan of the greater (though unspecified) process that he\n\ncontends he is entitled to as a matter of constitutional due\n\nprocess and that the presumption of prejudice that he contends\n\nthat we must apply has not been overcome here.\n\n O'Riordan does note that the Supreme Court has observed\n\nsince we decided Hernandez that removal is a \"severe 'penalty,'\"\n\nPadilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue\n\nTing v. United States, 149 U.S. 698, 740 (1893)), and that the\n\n\"right to remain in the United States may be more\n\nimportant . . . than any potential jail sentence,\" 3 Bender,\n\nCriminal Defense Techniques § 60A.01 (1999) (quoted in INS v. St.\n\nCyr, 533 U.S. 289, 322 (2001)). But, those statements were not\n\nmade in connection with due process challenges to immigration\n\nproceedings. They thus do not suffice to show that Flores-Ortega\n\nmust be extended in a way that Hernandez itself does not require.\n\nNor does O'Riordan develop any other argument as to why he is\n\nentitled to a presumption of prejudice.\n\n\n\n\n - 16 -\n\f B.\n\n We turn, then, to O'Riordan's assertion that he can make\n\na particularized showing of prejudice. He relies on either of two\n\ngrounds to do so, notwithstanding that he did not mention either\n\none in filling out the form that he was given upon being served\n\nwith the Notice of Intent to Issue a Final Administrative Removal\n\nOrder. We find neither contention persuasive.\n\n 1.\n\n O'Riordan contends first that, \"[b]ut for the order of\n\nremoval and his detention, [he] would be eligible to adjust his\n\nstatus to that of a lawful permanent resident\" as the \"son of\n\nlawful permanent resident parents and the spouse of a U.S.\n\ncitizen[.]\" He thus contends that -- because he did not knowingly\n\nand intelligently make the waiver of his right to more process\n\nthan he received, which he contends includes the right to contest\n\nhis removal on grounds precluded by the enforcement of the\n\nwaiver -- he was prejudiced by having been denied the opportunity\n\nto contest his removal on the basis of his eligibility to adjust\n\nhis status, as that is a ground that he asserts otherwise \"would\n\nbe\" available to him to contest his removal.\n\n We start with the prejudice claim that O'Riordan makes\n\nbased on the lawful permanent resident status of his parents. They\n\nhad that status at the time of his admission to the United States\n\nthrough the VWP, and nothing in the record indicates that they\n\n\n - 17 -\n\ffell out of that status at any point. O'Riordan thus contends\n\nthat -- but for the waiver's enforcement -- he would be eligible\n\nto apply for adjustment of status under 8 U.S.C. § 1255(c)(4).\n\n But, § 1255(c)(4) provides that individuals admitted\n\nunder the VWP may not apply for adjustment of status except on the\n\nbasis of their relationship to an \"immediate relative,\" id., which\n\n8 U.S.C. § 1151(b)(2)(A)(i) defines as, in relevant part, U.S.\n\ncitizen parents. As O'Riordan makes no argument, at least with\n\nrespect to his constitutional challenge, that he is not an\n\nindividual admitted under the VWP or that his parents are U.S.\n\ncitizens, we do not see how he would have been eligible to apply\n\nfor adjustment of status on the basis of his relationship to his\n\nparents at the \"hearing\" that he claims he was constitutionally\n\nentitled to receive but was not given.\n\n We turn, then, to the prejudice claim that O'Riordan\n\nmakes based on the U.S. citizenship status of his wife. Here, the\n\nproblem with his contention is somewhat different. The record\n\nshows that O'Riordan was not married to her at the time of the\n\nissuance of the administrative order of removal that he now seeks\n\nto have vacated. Thus, he could not have contested his removal on\n\nthe basis of his relationship to her at that time. 8 U.S.C.\n\n§§ 1151(b)(2)(A)(i), 1255(c)(4). Yet, he makes no argument as to\n\nwhy the decision to afford him a \"hearing\" at which he could have\n\ncontested removal on more grounds than he was permitted would have\n\n\n - 18 -\n\fensured that he would have been married to her and thus that he\n\ncould have then contested his removal at that hearing on that\n\nbasis.\n\n 2.\n\n O'Riordan separately contends that he can make a\n\nparticularized showing of prejudice by asking us to focus on the\n\nmoment at which the choice was made to have him admitted into the\n\ncountry through the VWP. He notes that, at that time, he was a\n\nchild of lawful permanent residents of this country, and he points\n\nout that his parents could have, at that time or thereafter,\n\n\"petitioned\" for his admission independent of the VWP on the basis\n\nof their familial ties to him.\n\n But, he points out, his parents may not now similarly\n\npetition for his admission to this country on that basis, in light\n\nof 8 U.S.C. § 1255(a)(2), precisely because he was admitted into\n\nthis country through the VWP and then overstayed his visa. Thus,\n\nhe contends, due to the waiver's enforcement, and the resulting\n\nadministrative removal that triggered the bar to his admission to\n\nthe United States that remains in place under 8 U.S.C.\n\n§ 1255(a)(2), he is worse off than he would have been with respect\n\nto his ability to obtain admission to the United States than if he\n\nhad not been admitted pursuant to the VWP at all. Accordingly, he\n\ncontends, in this way, he can show the requisite prejudice from\n\n\n\n\n - 19 -\n\fthe deprivation of process that he claims that he was subjected to\n\nby virtue of the issuance of the administrative order of removal.2\n\n The government counters this contention on the basis of\n\nBayo, 593 F.3d at 506, and Bradley, 603 F.3d at 240-41. The\n\ncircuit court in each of those cases determined that an alien\n\npotentially could show prejudice if the alien could have exercised\n\nthe option of not entering through the VWP and, by doing so,\n\nobtained admission into the United States through some other means\n\nthat would have enabled the alien to forge a relationship that\n\nwould have supplied a ground for contesting removal -- such as by\n\nseeking adjustment of status based on that relationship. See Bayo,\n\n593 F.3d at 506; Bradley, 603 F.3d at 240-41. The prejudice, the\n\ncourt went on to explain in each case, would then arise from the\n\nalien having been denied -- due to the enforcement of the\n\nwaiver -- the opportunity to contest the administrative order of\n\nremoval on the basis of that relationship. See Bradley, 603 F.3d\n\nat 241; Bayo, 593 F.3d at 506.\n\n\n\n\n2 In pointing out that, in consequence of 8 U.S.C. § 1255(a)(2),\nhe is now barred from obtaining adjustment of status so long as\nthe 10-year bar on his admissibility into the United States remains\nin place, O'Riordan does not argue that, wholly apart from the\nprocedural due process challenge that he brings, it is\nconstitutionally impermissible to impose such a ten-year bar on\nalien adults who first entered this country through the VWP years\nearlier as children with their family and thus might not have been\naware of their immigration status during the years that followed\nin which they lived in this country and developed ties to it.\n\n\n - 20 -\n\f In each case, however, the circuit court determined that\n\nthe claim of prejudice was too speculative. See Bradley, 603 F.3d\n\nat 240; Bayo, 593 F.3d at 506. The problem that each court\n\nidentified inhered in the fact that it was highly uncertain that\n\nthe relationship on which the eligibility for adjustment of status\n\nwould have been based would have been forged at all, absent the\n\nalien first having been admitted to the country through the VWP.\n\nSee Bradley, 603 F.3d at 240; Bayo, 593 F.3d at 506.\n\n O'Riordan is right that, unlike in either Bayo or\n\nBradley, we need not speculate in O'Riordan's case whether, if he\n\nhad not been admitted into this country through the VWP, he would\n\nhave forged a relationship through which he then could have been\n\neligible for admission to this country. The relationship that\n\nwould provide the basis for his eligibility would be the one that\n\nhe had with his parent, who was a lawful permanent resident at the\n\ntime of his admission to this country as a child through the VWP\n\nand thereafter. See 8 U.S.C. § 1153(a)(1).\n\n This distinction notwithstanding, O'Riordan still has\n\nfailed to show how the fact that his parents could have chosen not\n\nto seek his admission through the VWP is relevant to his contention\n\nthat he was prejudiced by the deprivation of process that he\n\nidentifies. A necessary premise of the prejudice claim addressed\n\nin Bayo and Bradley was that the alien petitioner might not have\n\n\n\n\n - 21 -\n\fentered this country through the VWP in the first place. It is\n\nno less a necessary premise of O'Riordan's related prejudice claim.\n\n But, that premise was plausible in Bayo and Bradley\n\nprecisely because the alien petitioner claimed in each case that\n\nhe had not made a knowing and intelligent waiver of the process\n\nrights that the VWP required him to make. That premise is not\n\nsimilarly plausible here.\n\n O'Riordan appears to accept -- at least for purposes of\n\nhis constitutional challenge -- that one of his parents did make\n\nthe choice to seek his admission, as a child, through the VWP.\n\nO'Riordan does not explain how his inability to knowingly and\n\nintelligently effect the waiver that his parent made on his behalf\n\nat that time bears on the choice that the parent made to seek his\n\nadmission through the VWP at that time. Thus, we do not see what\n\nreason we have to posit an alternative scenario for purposes of\n\nassessing prejudice -- such as was considered in Bayo and\n\nBradley -- in which he would not have entered this country through\n\nthe VWP and thus might be thought to have been prejudiced by having\n\nbeen removed through the administrative proceeding afforded to\n\nthose who have been admitted in that way. Accordingly, this more\n\nparticularized ground for showing prejudice necessarily fails.\n\n V.\n\n The petition for review is denied.\n\n\n\n\n - 22 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dylan O'RIORDAN, Petitioner, v. William P. BARR, Respondent.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1990\\n\\n DYLAN O'RIORDAN,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,*\\n\\n Respondent.\\n\\n\\n ON PETITION FOR REVIEW OF A FINAL ORDER OF\\n THE DEPARTMENT OF HOMELAND SECURITY\\n\\n\\n Before\\n\\n Torruella, Selya, and Barron,\\n Circuit Judges.\\n\\n\\n Anthony Marino, with whom Irish International Immigrant\\nCenter was on brief, for petitioner.\\n Joanna L. Watson, Trial Attorney, Office of Immigration\\nLitigation, with whom Chad A. Readler, Acting Assistant Attorney\\nGeneral, Civil Division, and Anthony P. Nicastro, Assistant\\nDirector, Office of Immigration Litigation were on brief, for\\nrespondent.\\n\\n\\n May 22, 2019\\n\\n\\n\\n\\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\\nWilliam P. Barr has been substituted for former Attorney General\\nJefferson Sessions, III, as the respondent.\\n\\f BARRON, Circuit Judge. Dylan O'Riordan is an Irish\\n\\ncitizen who had entered this country as a child and had been living\\n\\nin the United States for more than seven years when immigration\\n\\nofficials apprehended him. The government charged him with having\\n\\nbeen admitted to this country via the Visa Waiver Program (\\\"VWP\\\")\\n\\nand having stayed here beyond the 90-day period permitted by the\\n\\nvisa that he secured through that program. He now petitions for\\n\\nreview of the administrative order of removal that was issued in\\n\\naccord with the terms of the VWP, after the government found that\\n\\nhe had been admitted to the United States through the VWP as a\\n\\nchild and then overstayed his visa. Although O'Riordan's\\n\\ncircumstances are most unfortunate, we conclude that we must deny\\n\\nthe petition.\\n\\n I.\\n\\n The VWP allows \\\"a qualifying visitor [to] enter the\\n\\nUnited States without obtaining a visa, so long as a variety of\\n\\nstatutory and regulatory requirements are met.\\\" Bradley v. Att'y\\n\\nGen., 603 F.3d 235, 238 (3d Cir. 2010) (citing 8 U.S.C. § 1187).\\n\\nThe VWP is a reciprocal waiver program, which means that \\\"[a]n\\n\\nalien may not be provided a waiver [of the visa requirement from\\n\\nthe United States government] under the program unless the alien\\n\\nhas waived any right . . . to contest, other than on the basis of\\n\\nan application for asylum, any action for removal of the alien.\\\"\\n\\n8 U.S.C. § 1187(b). The VWP allows the alien visitor, per their\\n\\n\\n - 2 -\\n\\fvisa, to remain in the United States for 90 days after entry. Id.\\n\\n§ 1187(a)(1).\\n\\n Pursuant to the VWP, an alien must sign an \\\"I-94W,\\n\\nNonimmigrant Visa Waiver Arrival/Departure Form.\\\" 8 C.F.R.\\n\\n§ 217.2(b)(1). The alien must also complete a travel authorization\\n\\nunder the Electronic System for Travel Authorization (\\\"ESTA\\\").\\n\\nSee 8 C.F.R. § 217.5. On this ESTA form, there are fields to\\n\\nindicate whether the visitor has \\\"Waived Rights\\\" and whether the\\n\\nform was filled out by a \\\"Third Party.\\\"\\n\\n There is no I-94W waiver form related to O'Riordan's\\n\\ncase in the record. The record does contain an ESTA form\\n\\nconcerning his entry into the United States. That form, which is\\n\\ndated June 10, 2010, indicates \\\"Y\\\" in the field \\\"Waived Rights\\\"\\n\\nand \\\"Y\\\" in the field \\\"Third Party Indicator.\\\" O'Riordan was twelve\\n\\nyears old as of that date. At that time, his parents were both\\n\\nlawful permanent residents of the United States.\\n\\n During the more than seven years in which O'Riordan\\n\\nthereafter lived in the United States, he met Brenna Blanchette,\\n\\na United States citizen. He became engaged to her in January 2017\\n\\nwhile she was pregnant with his child, who was born in this\\n\\ncountry.\\n\\n On September 18, 2017, O'Riordan, then 19 years of age,\\n\\nwas taken into Department of Homeland Security (\\\"DHS\\\") custody.\\n\\nThe next day, he was served with a final administrative order of\\n\\n\\n - 3 -\\n\\fremoval. That order indicated that he had waived his right \\\"to\\n\\ncontest, other than on the basis of an application for asylum, any\\n\\naction for [his] removal\\\" through the VWP.\\n\\n In acknowledging service of the final order of removal,\\n\\nO'Riordan declined to contest his removal on certain grounds, such\\n\\nas U.S. citizen or lawful permanent resident status, entry through\\n\\nmeans other than the VWP, or compliance with the terms of the VWP.\\n\\nInstead, he indicated that he wished to contest his removal on\\n\\n\\\"Other\\\" grounds and explained that \\\"I came here as a child not\\n\\nknowing the consequences with my parents. I now have a [U.S.\\n\\ncitizen] child here in the United States who needs me.\\\" He also\\n\\nindicated that he \\\"wish[ed] to request Asylum, Withholding or\\n\\nDeferral of Removal.\\\"\\n\\n O'Riordan petitioned this court for review of his\\n\\nremoval order on October 6, 2017. The same day, O'Riordan moved\\n\\nin this Court to stay his removal. That motion was denied.\\n\\nO'Riordan then moved for reconsideration, but that motion was\\n\\ndenied as well.\\n\\n Because O'Riordan indicated that he intended to seek\\n\\nasylum or withholding of removal, he was put into withholding-only\\n\\nremoval proceedings on October 6, 2017. He moved to terminate\\n\\nthose proceedings on October 18, 2017. He explained that he did\\n\\n\\\"not understand[] the legal definitions of 'withholding' and\\n\\n'deferral'\\\" and so \\\"checked the box\\\" to seek such relief on the\\n\\n\\n - 4 -\\n\\funderstanding that doing so would allow him to seek review of his\\n\\nremoval.\\n\\n O'Riordan's petition for review in our Court and the\\n\\nwithholding-only proceedings were both pending when the government\\n\\nmoved to dismiss O'Riordan's petition for review for lack of\\n\\njurisdiction. The government did so on the ground that the\\n\\nadministrative order of removal was not final because the\\n\\nwithholding-only proceedings were ongoing.\\n\\n The withholding-only proceedings terminated while the\\n\\ngovernment's motion to dismiss the petition was pending before us.\\n\\nAs a result, the government moved to withdraw its motion to dismiss\\n\\nfor lack of jurisdiction. On November 9, 2017, we granted the\\n\\ngovernment's motion to withdraw its motion to dismiss.\\n\\n On November 28, 2017, DHS cancelled and reissued\\n\\nO'Riordan's prior Final Order of Removal. O'Riordan did not file\\n\\na petition for review of that order. Throughout this period,\\n\\nO'Riordan was detained pending his removal.\\n\\n On December 18, 2017, after the entry of his final order\\n\\nof removal, O'Riordan and Blanchette were married in a prison\\n\\nchapel. O'Riordan was ultimately removed to Ireland on February\\n\\n15, 2018.\\n\\n II.\\n\\n We first address our jurisdiction to review O'Riordan's\\n\\npetition. We begin with the issue of whether we have jurisdiction\\n\\n\\n - 5 -\\n\\funder Article III of the federal Constitution. We then consider\\n\\nwhether we have statutory jurisdiction.\\n\\n The constitutional issue concerning our jurisdiction\\n\\narises because, after O'Riordan's removal to Ireland, he made\\n\\ncertain statements to the press in which he appeared to indicate\\n\\nthat he did not intend to return to the United States. Because\\n\\n\\\"every federal appellate court has a special obligation to satisfy\\n\\nitself . . . of its own jurisdiction,\\\" we ordered O'Riordan to\\n\\nshow cause why the case should not be dismissed as moot. Arizonans\\n\\nfor Official English v. Arizona, 520 U.S. 43, 73 (1997) (quoting\\n\\nBender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986))\\n\\n(internal quotation marks and citations omitted).\\n\\n O'Riordan, in response to our order, stated his interest\\n\\nin returning to the United States and explained that we \\\"continue[]\\n\\nto have the power to grant effectual relief by vacating his order\\n\\nof removal and ordering the government to provide a\\n\\nconstitutionally sufficient hearing in which Dylan may pursue\\n\\nrelief.\\\" The government, which bears the burden of establishing\\n\\nmootness, see Am. Civil Liberties Union of Mass. v. U.S. Conference\\n\\nof Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013), has made no\\n\\nattempt to rebut O'Riordan's representations to us regarding his\\n\\nintentions to return to the United States or otherwise argue that\\n\\nO'Riordan's case is moot. In light of O'Riordan's representations\\n\\nabout his intentions, and our power to grant O'Riordan \\\"effectual\\n\\n\\n - 6 -\\n\\frelief\\\" -- by vacating the removal order and thus permitting him\\n\\nto return to the United States and challenge his removal in the\\n\\ntype of hearing that he contends he is entitled to receive as a\\n\\nconstitutional matter -- his case is not moot. See Church of\\n\\nScientology of Cal. v. United States, 506 U.S. 9, 12 (1992).\\n\\n We must also consider the question of whether we have\\n\\nstatutory jurisdiction. The statutory issue concerning our\\n\\njurisdiction arises because \\\"petition[s] for review must be filed\\n\\nnot later than 30 days after the date of the final order of\\n\\nremoval.\\\" 8 U.S.C. § 1252(b)(1). O'Riordan timely petitioned for\\n\\nreview of the September 19, 2017 removal order. O'Riordan did\\n\\nnot, however, petition -- timely or otherwise -- for review of the\\n\\nremoval order that was subsequently issued on November 28, 2017.\\n\\n Despite this wrinkle concerning the timeliness of\\n\\nO'Riordan's petition, the parties agree that we do have statutory\\n\\njurisdiction. O'Riordan contends that we should not treat the\\n\\norder issued in November as if it were a distinct removal order at\\n\\nall, given what the record shows about how the government itself\\n\\ntreated it. He further contends that we may treat the September\\n\\norder as final, despite the fact that the withholding of removal\\n\\nproceedings were pending at the time of the petition from the\\n\\norder. The government, for its part, contends that we may treat\\n\\nthe petition for review from the September order as timely, even\\n\\nthough the government contends that order was not final. The\\n\\n\\n - 7 -\\n\\fgovernment contends that we may deem the petition for review to\\n\\nhave ripened upon the issuance of the subsequently issued removal\\n\\norder.\\n\\n We have not previously decided whether a prematurely\\n\\nfiled petition for review from an order of removal may be deemed\\n\\ntimely on a ripening theory, and other circuits are divided on\\n\\nthat issue. Compare Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d\\n\\n1307, 1308 (11th Cir. 2016) (adopting a ripening theory for\\n\\npremature petitions for review), Hounmenou v. Holder, 691 F.3d\\n\\n967, 970 n.1 (8th Cir. 2012) (same), Khan v. Att'y Gen., 691 F.3d\\n\\n488, 493 (3d Cir. 2012) (same), Herrera-Molina v. Holder, 597 F.3d\\n\\n128, 132 (2d Cir. 2010) (same), and G.S. v. Holder, 373 F. App'x\\n\\n836, 843 (10th Cir. 2010) (same), with Moreira v. Mukasey, 509\\n\\nF.3d 709, 713 (5th Cir. 2007) (rejecting a ripening theory for\\n\\npremature petitions for review), Jaber v. Gonzales, 486 F.3d 223,\\n\\n228-30 (6th Cir. 2007)(same), and Brion v. INS, 51 F. App'x 732,\\n\\n733 (9th Cir. 2002) (same). Nor are we aware of a case that has\\n\\napplied a ripening theory in a case in which the assertedly non-\\n\\nfinal order from which the petition for review was sought was\\n\\npurportedly cancelled and a new removal order was subsequently\\n\\nissued.\\n\\n However, we need not resolve the precise ground on which\\n\\nwe may treat this petition for review to be timely. Given our\\n\\nconclusion that the petition for review clearly must be denied on\\n\\n\\n - 8 -\\n\\fthe merits, we may simply proceed on the assumption that our\\n\\nstatutory jurisdiction is secure, without resolving definitively\\n\\nthat it is. See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir.\\n\\n2018).1\\n\\n III.\\n\\n We begin with O'Riordan's contention that the government\\n\\nfailed to present sufficient evidence of his removability. He\\n\\ncontends that the proper inquiry concerns whether \\\"clear,\\n\\nunequivocal, and convincing evidence,\\\" Woodby v. INS, 385 U.S.\\n\\n276, 277 (1966), establishes that he is subject to removal pursuant\\n\\nto 8 U.S.C. § 1187 for having overstayed his visa after having\\n\\nbeen admitted to the United States pursuant to the VWP.\\n\\n We may assume that the Woodby standard applies in a case\\n\\nlike this one -- a proposition that the government disputes -- and\\n\\nthat our review is thus for substantial evidence, see Urizar-\\n\\nCarrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013), as neither\\n\\nparty contends otherwise. We may do so because we conclude that,\\n\\n\\n\\n\\n1We do note that, although the parties agree that we have statutory\\njurisdiction, the divergent rationales they provide demonstrate\\nthat they differ as to which order we are reviewing pursuant to\\nO'Riordan's petition. O'Riordan contends that the operative order\\nof removal is, and has always been, the September 19, 2017 order\\nof removal. The government, by contrast, contends that order was\\ncanceled and replaced by the November 28, 2017 order. Because our\\nreasons for denying O'Riordan's petition for review on the merits\\nare the same regardless of which order forms the basis of our\\njurisdiction, we need not resolve this issue either.\\n\\n\\n - 9 -\\n\\feven under Woodby, there is no basis in the record for vacating\\n\\nthe administrative order of removal on evidentiary grounds.\\n\\n In reaching this conclusion, we note that O'Riordan does\\n\\nnot dispute that the record shows that, upon service of the\\n\\ngovernment's Notice of Intent to Issue a Final Administrative\\n\\nRemoval Order, he completed a form in which he indicated that he\\n\\ndid not intend to contest removal on the basis of threshold factual\\n\\nissues that would undermine the basis for finding him removable.\\n\\nThese issues included his being a U.S. citizen or a lawful\\n\\npermanent resident, his not having entered this country through\\n\\nthe VWP, or his being in compliance with the terms of his\\n\\nadmission. Nor does he dispute that the form provided an option\\n\\nwhereby O'Riordan could select \\\"Other\\\" and provide a basis for\\n\\ncontesting his removability, to which he responded by explaining\\n\\nonly that he came to the United States as a child without\\n\\nunderstanding the consequences and that he now has a U.S. citizen\\n\\nchild dependent. We note, too, that the record contains travel\\n\\ndocuments that show that O'Riordan flew to the United States with\\n\\nhis mother at the time that the ESTA form that is in the record\\n\\nwas filled out.\\n\\n To make the case that we are nonetheless compelled on\\n\\nthis record to find that the government has not met its evidentiary\\n\\nburden as to his removability, see Urizar-Carrascoza, 727 F.3d at\\n\\n31 (explaining that, when reviewing for substantial evidence, \\\"we\\n\\n\\n - 10 -\\n\\fuphold [factual] determinations unless 'any reasonable adjudicator\\n\\nwould be compelled to conclude to the contrary'\\\" (quoting 8 U.S.C.\\n\\n§ 1252(b)(4)(B))), O'Riordan points to the fact that there is no\\n\\nI-94W form pertaining to him in the record and to certain documents\\n\\nin the record that contain varying dates as to when he entered the\\n\\nUnited States as a child. But, in light of the evidence described\\n\\nabove concerning the circumstances of O'Riordan's entry, his own\\n\\nrepresentations on the form that he filled out when given notice\\n\\nof his administrative removal based on his having overstayed the\\n\\nvisa under the VWP, see Lima v. Holder, 758 F.3d 72, 81 (1st Cir.\\n\\n2014), and the fact that he makes no contention that he in fact\\n\\nentered the country through any means other than the VWP, those\\n\\nfeatures of the record that he highlights in support of his\\n\\nposition do not suffice to permit us to conclude that the\\n\\nadministrative order is not supportable as an evidentiary matter.\\n\\n IV.\\n\\n We thus turn to O'Riordan's procedural due process\\n\\nchallenge to the removal order under the Fifth Amendment to the\\n\\nUnited States Constitution. For purposes of this challenge,\\n\\nO'Riordan appears to accept that the record supports the conclusion\\n\\nthat he was admitted into the United States pursuant to the VWP,\\n\\nthat the waiver of the right to contest removal that is required\\n\\nof those who are admitted pursuant to the VWP was effected on his\\n\\n\\n\\n\\n - 11 -\\n\\fbehalf in his case, and that he then overstayed his visa in\\n\\nviolation of the terms of the VWP.\\n\\n Nevertheless, O'Riordan contends that, as a matter of\\n\\nconstitutional procedural due process, his administrative order of\\n\\nremoval must be vacated because he was permitted to contest it\\n\\nonly on certain limited grounds and then only in a removal\\n\\nproceeding that he characterizes as one in which there was not\\n\\n\\\"any hearing at all.\\\" In pressing this contention, he does not\\n\\ndispute that the right he claims to have -- the right to contest\\n\\nhis removal on other grounds and in what he contends would qualify\\n\\nas a \\\"hearing\\\" -- is subject to waiver. But, he contends, the\\n\\nwaiver of any right to such greater process than was effected in\\n\\naccord with the VWP is not enforceable in his case, because, at\\n\\nthe time of his admission into this country through the VWP, he\\n\\nwas a mere child and thus could not have knowingly and\\n\\nintelligently waived any such right. For, as he correctly notes,\\n\\na person ordinarily must knowingly and intelligently waive a\\n\\nfederal constitutional right -- such as a right to the process due\\n\\nunder the Fifth Amendment -- in order for that waiver to bar that\\n\\nperson from asserting that right. See Johnson v. Zerbst, 304 U.S.\\n\\n458, 464 (1938); see also Bayo v. Napolitano, 593 F.3d 495, 503-05\\n\\n(7th Cir. 2010); Nose v. Att'y Gen., 993 F.2d 75, 79 (5th Cir.\\n\\n1993).\\n\\n\\n\\n\\n - 12 -\\n\\f The government asserts in response that O'Riordan was\\n\\nnot entitled under Mathews v. Eldridge, 424 U.S. 319, 335 (1976),\\n\\nto more process than he received, and, we note, O'Riordan does not\\n\\naddress Mathews until his reply brief. See United States v.\\n\\nFreitas, 904 F.3d 11, 22 (1st Cir. 2018) (\\\"[A]n argument raised\\n\\nfor the first time in a reply brief comes too late to be preserved\\n\\non appeal.\\\" (internal quotation and alteration omitted)). Nor\\n\\ndoes he spell out the additional procedural protections that he\\n\\nclaims he was entitled to receive.\\n\\n But, even assuming both that the waiver's enforcement\\n\\nwould deprive O'Riordan of a right to a type of removal proceeding\\n\\nto which he claims that he otherwise would have been entitled as\\n\\na matter of constitutional due process and that the record fails\\n\\nto establish that he did knowingly and intelligently make a waiver\\n\\nof his right to such a proceeding, the question remains whether\\n\\nO'Riordan has shown prejudice from the due process violation that\\n\\nhe alleges. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 7 (1st\\n\\nCir. 2008) (\\\"A petitioner can carry his burden only by a specific\\n\\nshowing that the challenged practice likely affected the result of\\n\\nthe hearing.\\\"). O'Riordan appears to accept that he needs to show\\n\\nprejudice to succeed on his due process challenge. Yet, his\\n\\nchallenge comes up short on that score, as he fails either to\\n\\nestablish that he is entitled to what he refers to as a\\n\\n\\n\\n\\n - 13 -\\n\\f\\\"presumption of prejudice\\\" or to make a sufficient particularized\\n\\nshowing of prejudice.\\n\\n A.\\n\\n We begin with O'Riordan's contention that he is entitled\\n\\nto a presumption of prejudice, such that he need not make a\\n\\nparticularized showing of prejudice. We may assume that the\\n\\ngovernment has not rebutted any such presumption, for, as we\\n\\nexplain, we find that his attempt to establish that such a\\n\\npresumption applies is unpersuasive.\\n\\n O'Riordan relies in making this argument for\\n\\npresumptive prejudice on Roe v. Flores-Ortega, 528 U.S. 470\\n\\n(2000), which holds that a \\\"denial of [an] entire judicial\\n\\nproceeding itself . . . demands a presumption of prejudice\\\" for\\n\\npurposes of a Sixth Amendment ineffective assistance of counsel\\n\\nclaim, id. at 483, and on Hernandez v. Reno, 238 F.3d 50, 57 (1st\\n\\nCir. 2001), which addressed Flores-Ortega in the context of\\n\\nimmigration proceedings. In Hernandez, we considered an alien's\\n\\nchallenge to a denial by the Board of Immigration Appeals (\\\"BIA\\\")\\n\\nof a motion to reopen that was based on the contention that the\\n\\nalien's counsel had provided ineffective assistance by failing to\\n\\nappeal to the BIA from the immigration judge's deportation order.\\n\\nId. at 53.\\n\\n O'Riordan points out that, although Hernandez rejected\\n\\nthe petitioner's due process challenge in that case, it addressed\\n\\n\\n - 14 -\\n\\fFlores-Ortega by noting that \\\"[o]ur concern in the immigration\\n\\ncontext is not with the Sixth Amendment but with preserving a fair\\n\\nopportunity to have a . . . claim considered . . . .\\\" Id. at 57.\\n\\nHe also rightly notes that, in Hernandez, we went on to explain\\n\\nthat the alien in that case had been given \\\"a fair opportunity to\\n\\npresent his waiver case to the immigration judge,\\\" which included\\n\\n\\\"a hearing, substantial testimony, and a reasoned decision.\\\" Id.\\n\\nat 56 (emphasis in original). O'Riordan contends, based on these\\n\\nstatements, that Hernandez shows that he is entitled to at least\\n\\na presumption that he was prejudiced by being denied such process,\\n\\ndue to the type of proceedings that were used to effect his\\n\\nremoval.\\n\\n But, in Hernandez, we expressly declined to \\\"extend[]\\n\\nthe prejudice per se notion from criminal convictions to review of\\n\\nwaiver denials in deportations,\\\" id. at 57, that we would apply\\n\\nin the event of a \\\"waiver\\\" of a requested appeal from a criminal\\n\\nconviction due to the ineffective assistance of counsel, see\\n\\nFlores-Ortega, 528 U.S. at 483. Moreover, in declining to extend\\n\\nFlores-Ortega in that respect, we made no holding -- nor even\\n\\noffered any dicta -- as to when, if ever, a presumption of\\n\\nprejudice for a claimed lack of constitutionally adequate process\\n\\narising from the use of summary process in the immigration context\\n\\nmight be appropriate. See Hernandez, 238 F.3d at 56-57.\\n\\n\\n\\n\\n - 15 -\\n\\f Thus, Hernandez does not justify, much less require, the\\n\\nconclusion that the logic of Flores-Ortega must be extended to the\\n\\nimmigration context, such that we must presume that the waiver's\\n\\nenforcement in O'Riordan's case prejudiced him by depriving him of\\n\\na right to more than the process that he received. That is so,\\n\\neven if we assume both that the waiver's enforcement would deprive\\n\\nO'Riordan of the greater (though unspecified) process that he\\n\\ncontends he is entitled to as a matter of constitutional due\\n\\nprocess and that the presumption of prejudice that he contends\\n\\nthat we must apply has not been overcome here.\\n\\n O'Riordan does note that the Supreme Court has observed\\n\\nsince we decided Hernandez that removal is a \\\"severe 'penalty,'\\\"\\n\\nPadilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue\\n\\nTing v. United States, 149 U.S. 698, 740 (1893)), and that the\\n\\n\\\"right to remain in the United States may be more\\n\\nimportant . . . than any potential jail sentence,\\\" 3 Bender,\\n\\nCriminal Defense Techniques § 60A.01 (1999) (quoted in INS v. St.\\n\\nCyr, 533 U.S. 289, 322 (2001)). But, those statements were not\\n\\nmade in connection with due process challenges to immigration\\n\\nproceedings. They thus do not suffice to show that Flores-Ortega\\n\\nmust be extended in a way that Hernandez itself does not require.\\n\\nNor does O'Riordan develop any other argument as to why he is\\n\\nentitled to a presumption of prejudice.\\n\\n\\n\\n\\n - 16 -\\n\\f B.\\n\\n We turn, then, to O'Riordan's assertion that he can make\\n\\na particularized showing of prejudice. He relies on either of two\\n\\ngrounds to do so, notwithstanding that he did not mention either\\n\\none in filling out the form that he was given upon being served\\n\\nwith the Notice of Intent to Issue a Final Administrative Removal\\n\\nOrder. We find neither contention persuasive.\\n\\n 1.\\n\\n O'Riordan contends first that, \\\"[b]ut for the order of\\n\\nremoval and his detention, [he] would be eligible to adjust his\\n\\nstatus to that of a lawful permanent resident\\\" as the \\\"son of\\n\\nlawful permanent resident parents and the spouse of a U.S.\\n\\ncitizen[.]\\\" He thus contends that -- because he did not knowingly\\n\\nand intelligently make the waiver of his right to more process\\n\\nthan he received, which he contends includes the right to contest\\n\\nhis removal on grounds precluded by the enforcement of the\\n\\nwaiver -- he was prejudiced by having been denied the opportunity\\n\\nto contest his removal on the basis of his eligibility to adjust\\n\\nhis status, as that is a ground that he asserts otherwise \\\"would\\n\\nbe\\\" available to him to contest his removal.\\n\\n We start with the prejudice claim that O'Riordan makes\\n\\nbased on the lawful permanent resident status of his parents. They\\n\\nhad that status at the time of his admission to the United States\\n\\nthrough the VWP, and nothing in the record indicates that they\\n\\n\\n - 17 -\\n\\ffell out of that status at any point. O'Riordan thus contends\\n\\nthat -- but for the waiver's enforcement -- he would be eligible\\n\\nto apply for adjustment of status under 8 U.S.C. § 1255(c)(4).\\n\\n But, § 1255(c)(4) provides that individuals admitted\\n\\nunder the VWP may not apply for adjustment of status except on the\\n\\nbasis of their relationship to an \\\"immediate relative,\\\" id., which\\n\\n8 U.S.C. § 1151(b)(2)(A)(i) defines as, in relevant part, U.S.\\n\\ncitizen parents. As O'Riordan makes no argument, at least with\\n\\nrespect to his constitutional challenge, that he is not an\\n\\nindividual admitted under the VWP or that his parents are U.S.\\n\\ncitizens, we do not see how he would have been eligible to apply\\n\\nfor adjustment of status on the basis of his relationship to his\\n\\nparents at the \\\"hearing\\\" that he claims he was constitutionally\\n\\nentitled to receive but was not given.\\n\\n We turn, then, to the prejudice claim that O'Riordan\\n\\nmakes based on the U.S. citizenship status of his wife. Here, the\\n\\nproblem with his contention is somewhat different. The record\\n\\nshows that O'Riordan was not married to her at the time of the\\n\\nissuance of the administrative order of removal that he now seeks\\n\\nto have vacated. Thus, he could not have contested his removal on\\n\\nthe basis of his relationship to her at that time. 8 U.S.C.\\n\\n§§ 1151(b)(2)(A)(i), 1255(c)(4). Yet, he makes no argument as to\\n\\nwhy the decision to afford him a \\\"hearing\\\" at which he could have\\n\\ncontested removal on more grounds than he was permitted would have\\n\\n\\n - 18 -\\n\\fensured that he would have been married to her and thus that he\\n\\ncould have then contested his removal at that hearing on that\\n\\nbasis.\\n\\n 2.\\n\\n O'Riordan separately contends that he can make a\\n\\nparticularized showing of prejudice by asking us to focus on the\\n\\nmoment at which the choice was made to have him admitted into the\\n\\ncountry through the VWP. He notes that, at that time, he was a\\n\\nchild of lawful permanent residents of this country, and he points\\n\\nout that his parents could have, at that time or thereafter,\\n\\n\\\"petitioned\\\" for his admission independent of the VWP on the basis\\n\\nof their familial ties to him.\\n\\n But, he points out, his parents may not now similarly\\n\\npetition for his admission to this country on that basis, in light\\n\\nof 8 U.S.C. § 1255(a)(2), precisely because he was admitted into\\n\\nthis country through the VWP and then overstayed his visa. Thus,\\n\\nhe contends, due to the waiver's enforcement, and the resulting\\n\\nadministrative removal that triggered the bar to his admission to\\n\\nthe United States that remains in place under 8 U.S.C.\\n\\n§ 1255(a)(2), he is worse off than he would have been with respect\\n\\nto his ability to obtain admission to the United States than if he\\n\\nhad not been admitted pursuant to the VWP at all. Accordingly, he\\n\\ncontends, in this way, he can show the requisite prejudice from\\n\\n\\n\\n\\n - 19 -\\n\\fthe deprivation of process that he claims that he was subjected to\\n\\nby virtue of the issuance of the administrative order of removal.2\\n\\n The government counters this contention on the basis of\\n\\nBayo, 593 F.3d at 506, and Bradley, 603 F.3d at 240-41. The\\n\\ncircuit court in each of those cases determined that an alien\\n\\npotentially could show prejudice if the alien could have exercised\\n\\nthe option of not entering through the VWP and, by doing so,\\n\\nobtained admission into the United States through some other means\\n\\nthat would have enabled the alien to forge a relationship that\\n\\nwould have supplied a ground for contesting removal -- such as by\\n\\nseeking adjustment of status based on that relationship. See Bayo,\\n\\n593 F.3d at 506; Bradley, 603 F.3d at 240-41. The prejudice, the\\n\\ncourt went on to explain in each case, would then arise from the\\n\\nalien having been denied -- due to the enforcement of the\\n\\nwaiver -- the opportunity to contest the administrative order of\\n\\nremoval on the basis of that relationship. See Bradley, 603 F.3d\\n\\nat 241; Bayo, 593 F.3d at 506.\\n\\n\\n\\n\\n2 In pointing out that, in consequence of 8 U.S.C. § 1255(a)(2),\\nhe is now barred from obtaining adjustment of status so long as\\nthe 10-year bar on his admissibility into the United States remains\\nin place, O'Riordan does not argue that, wholly apart from the\\nprocedural due process challenge that he brings, it is\\nconstitutionally impermissible to impose such a ten-year bar on\\nalien adults who first entered this country through the VWP years\\nearlier as children with their family and thus might not have been\\naware of their immigration status during the years that followed\\nin which they lived in this country and developed ties to it.\\n\\n\\n - 20 -\\n\\f In each case, however, the circuit court determined that\\n\\nthe claim of prejudice was too speculative. See Bradley, 603 F.3d\\n\\nat 240; Bayo, 593 F.3d at 506. The problem that each court\\n\\nidentified inhered in the fact that it was highly uncertain that\\n\\nthe relationship on which the eligibility for adjustment of status\\n\\nwould have been based would have been forged at all, absent the\\n\\nalien first having been admitted to the country through the VWP.\\n\\nSee Bradley, 603 F.3d at 240; Bayo, 593 F.3d at 506.\\n\\n O'Riordan is right that, unlike in either Bayo or\\n\\nBradley, we need not speculate in O'Riordan's case whether, if he\\n\\nhad not been admitted into this country through the VWP, he would\\n\\nhave forged a relationship through which he then could have been\\n\\neligible for admission to this country. The relationship that\\n\\nwould provide the basis for his eligibility would be the one that\\n\\nhe had with his parent, who was a lawful permanent resident at the\\n\\ntime of his admission to this country as a child through the VWP\\n\\nand thereafter. See 8 U.S.C. § 1153(a)(1).\\n\\n This distinction notwithstanding, O'Riordan still has\\n\\nfailed to show how the fact that his parents could have chosen not\\n\\nto seek his admission through the VWP is relevant to his contention\\n\\nthat he was prejudiced by the deprivation of process that he\\n\\nidentifies. A necessary premise of the prejudice claim addressed\\n\\nin Bayo and Bradley was that the alien petitioner might not have\\n\\n\\n\\n\\n - 21 -\\n\\fentered this country through the VWP in the first place. It is\\n\\nno less a necessary premise of O'Riordan's related prejudice claim.\\n\\n But, that premise was plausible in Bayo and Bradley\\n\\nprecisely because the alien petitioner claimed in each case that\\n\\nhe had not made a knowing and intelligent waiver of the process\\n\\nrights that the VWP required him to make. That premise is not\\n\\nsimilarly plausible here.\\n\\n O'Riordan appears to accept -- at least for purposes of\\n\\nhis constitutional challenge -- that one of his parents did make\\n\\nthe choice to seek his admission, as a child, through the VWP.\\n\\nO'Riordan does not explain how his inability to knowingly and\\n\\nintelligently effect the waiver that his parent made on his behalf\\n\\nat that time bears on the choice that the parent made to seek his\\n\\nadmission through the VWP at that time. Thus, we do not see what\\n\\nreason we have to posit an alternative scenario for purposes of\\n\\nassessing prejudice -- such as was considered in Bayo and\\n\\nBradley -- in which he would not have entered this country through\\n\\nthe VWP and thus might be thought to have been prejudiced by having\\n\\nbeen removed through the administrative proceeding afforded to\\n\\nthose who have been admitted in that way. Accordingly, this more\\n\\nparticularized ground for showing prejudice necessarily fails.\\n\\n V.\\n\\n The petition for review is denied.\\n\\n\\n\\n\\n - 22 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1970,"cells":{"id":{"kind":"number","value":4622316,"string":"4,622,316"},"name":{"kind":"string","value":"C.D., BY AND THROUGH Her Parents and Next Friends, M.D. and P.D.; M.D.; P.D., Plaintiffs, Appellants, v. NATICK PUBLIC SCHOOL DISTRICT; Bureau of Special Education Appeals, Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"C.D. by and Through M.D. v. Natick Public School District"},"decision_date":{"kind":"string","value":"2019-05-22"},"docket_number":{"kind":"string","value":"18-1794P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Lynch, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"the Judge David L. Bazelon Center for Mental Health Law\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1794\\n\\n C.D., by and through her Parents and Next Friends, M.D. and\\n P.D.; M.D.; P.D.,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n NATICK PUBLIC SCHOOL DISTRICT; BUREAU OF SPECIAL EDUCATION\\n APPEALS,\\n\\n Defendants, Appellees.\\n\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Lynch, and Kayatta,\\n Circuit Judges.\\n\\n\\n Benjamin J. Wish, with whom Todd & Weld, LLP, Laurie R.\\nMartucci, and Martucci Law Associates were on brief, for\\nappellants.\\n Selene Almazan-Altobelli and Ellen Saideman on brief for\\nCouncil of Parent Attorneys and Advocates, Inc., amicus curiae.\\n Ira A. Burnim, Lewis Bossing, Elizabeth B. McCallum, Paul E.\\nPoirot, William T. DeVinney, and Baker Hostetler, LLP on brief for\\nthe Judge David L. Bazelon Center for Mental Health Law,\\nAssociation of University Centers on Disabilities, Disability Law\\nCenter, National Center for Learning Disabilities, National Center\\nfor Youth Law, National Disability Rights Network, and National\\nDown Syndrome Congress, amici curiae.\\n Felicia S. Vasudevan, with whom Murphy, Hesse, Toomey &\\n\\fLehane, LLP was on brief, for Natick Public School District.\\n Anna Rachel Dray-Siegel, Assistant Attorney General, with\\nwhom Maura Healey, Attorney General of Massachusetts, was on brief,\\nfor Bureau of Special Education Appeals.\\n Michael J. Long and Long & DiPietro, LLP on brief for the\\nMassachusetts Association of School Superintendents, amicus\\ncuriae.\\n Francisco M. Negrón, Jr., Cristine M.D. Goldman, Colleen\\nShea, Colby Brunt, and Stoneman, Chandler & Miller, LLP on brief\\nfor National School Boards Association and Massachusetts\\nAssociation of School Committees, amici curiae.\\n\\n\\n May 22, 2019\\n\\f LYNCH, Circuit Judge. The Individuals with Disabilities\\n\\nEducation Act (IDEA) requires that students with certain\\n\\ndisabilities be provided a \\\"[f]ree appropriate public education\\\"\\n\\n(FAPE) in the \\\"[l]east restrictive environment\\\" (LRE) appropriate\\n\\nfor each student. 20 U.S.C. § 1412(a)(1), (5). Under the IDEA\\n\\nand Massachusetts law, the individualized education programs\\n\\n(IEPs) of certain disabled students must also contain\\n\\npostsecondary transition goals and services based on age-\\n\\nappropriate assessments. Id. § 1414(d)(1)(A)(i)(VIII); Mass.\\n\\nGen. Laws ch. 71B, § 2.\\n\\n Appellants are C.D., a resident of Natick,\\n\\nMassachusetts, who qualified as a child with a disability under\\n\\nthe IDEA, and her parents. They challenge this circuit's prior\\n\\ninterpretations of these IDEA requirements as incomplete or as\\n\\ninconsistent with the IDEA and current Supreme Court case law.\\n\\nThe parents seek reimbursement for at least three years of C.D.'s\\n\\neducation in a specialized private school. Rejecting these\\n\\nchallenges, we affirm the district court, which upheld a decision\\n\\nof the Massachusetts Bureau of Special Education Appeals (BSEA)\\n\\nruling that the Natick Public School District (Natick) had complied\\n\\nwith the FAPE, LRE, and transition requirements in proposed IEPs\\n\\nfor C.D. See C.D. v. Natick Pub. Sch. Dist. (C.D. II), No. 15-\\n\\n13617-FDS, 2018 WL 3510291, at *1 (D. Mass. July 20, 2018); C.D.\\n\\n\\n\\n\\n - 3 -\\n\\fv. Natick Pub. Sch. Dist. (C.D. I), No. 15-13617-FDS, 2017 WL\\n\\n3122654, at *1 (D. Mass. July 21, 2017).\\n\\n I.\\n\\n The IDEA offers states federal funds for the education\\n\\nof children with disabilities in exchange for the states'\\n\\ncommitments to comply with the IDEA's directives, including its\\n\\nFAPE and LRE requirements. See Arlington Cent. Sch. Dist. Bd. of\\n\\nEduc. v. Murphy, 548 U.S. 291, 295 (2006).\\n\\n A FAPE \\\"comprises 'special education and related\\n\\nservices' -- both 'instruction' tailored to meet a child's 'unique\\n\\nneeds' and sufficient 'supportive services' to permit the child to\\n\\nbenefit from that instruction.\\\" Fry v. Napoleon Cmty. Sch., 137\\n\\nS. Ct. 743, 748–49 (2017) (quoting 20 U.S.C. § 1401(9), (26),\\n\\n(29)). \\\"The primary vehicle for delivery of a FAPE is an IEP.\\\"\\n\\nD.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.\\n\\n2012) (internal quotation marks omitted). IEPs are \\\"comprehensive\\n\\nplan[s]\\\" that are developed by the child's \\\"IEP Team (which\\n\\nincludes teachers, school officials, and the child's parents)\\\" and\\n\\nthat \\\"must be drafted in compliance with a detailed set of\\n\\nprocedures.\\\" Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.\\n\\nCt. 988, 994 (2017) (internal quotation marks omitted). Under the\\n\\nSupreme Court's recent decision in Endrew F. v. Douglas County\\n\\nSchool District RE-1, 137 S. Ct. 988 (2017), the services offered\\n\\nin an IEP amount to a FAPE if they are \\\"reasonably calculated to\\n\\n\\n - 4 -\\n\\fenable a child to make progress appropriate in light of the child's\\n\\ncircumstances.\\\" Id. at 1001.\\n\\n The IDEA also requires states receiving federal funds to\\n\\neducate disabled children in the \\\"[l]east restrictive environment\\\"\\n\\nappropriate for each child. 20 U.S.C. § 1412(a)(5). The statute\\n\\nmandates at § 1412(a)(5)(A):\\n\\n To the maximum extent appropriate, children\\n with disabilities . . . are educated with\\n children who are not disabled, and special\\n classes, separate schooling, or other removal\\n of children with disabilities from the regular\\n educational environment occurs only when the\\n nature or severity of the disability of a\\n child is such that education in regular\\n classes with the use of supplementary aids and\\n services cannot be achieved satisfactorily.\\n\\nId. The Supreme Court has characterized this LRE mandate as\\n\\nembodying a \\\"preference\\\" for \\\"mainstreaming\\\" students with\\n\\ndisabilities in \\\"the regular classrooms of a public school system.\\\"\\n\\nBd. of Educ. v. Rowley, 458 U.S. 176, 202-03 (1982); see also\\n\\nEndrew F., 137 S. Ct. at 999 (\\\"[T]he IDEA requires that children\\n\\nwith disabilities receive education in the regular classroom\\n\\n'whenever possible'\\\" (quoting Rowley, 458 U.S. at 202)). But the\\n\\nIDEA's preference for mainstreaming \\\"is not absolute.\\\" T.M. ex\\n\\nrel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 162 (2d Cir.\\n\\n2014); see also Rowley, 458 U.S. at 197 n.21 (\\\"The Act's use of\\n\\nthe word 'appropriate' . . . reflect[s] Congress' recognition that\\n\\nsome settings simply are not suitable environments for . . . some\\n\\n\\n\\n\\n - 5 -\\n\\fhandicapped children.\\\"). Instead, as we explained in Roland M.\\n\\nv. Concord School Committee, 910 F.2d 983 (1st Cir. 1990), \\\"the\\n\\ndesirability of mainstreaming must be weighed in concert with the\\n\\nAct's mandate for educational improvement.\\\"1 Id. at 993.\\n\\n The final IDEA requirement at issue here is the\\n\\ninstruction at § 1414(d)(1)(A)(i)(VIII) that certain students'\\n\\nIEPs \\\"include[] . . . appropriate measurable postsecondary goals\\n\\nbased upon age appropriate transition assessments related to\\n\\ntraining, education, employment, and . . . independent living\\n\\nskills\\\" along with \\\"the transition services (including courses of\\n\\nstudy) needed to assist the child in reaching those goals.\\\" 20\\n\\nU.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb). Massachusetts has made\\n\\nthese transition requirements applicable starting at age fourteen.\\n\\nSee Mass. Gen. Laws ch. 71B, § 2; see also 20 U.S.C.\\n\\n§ 1414(d)(1)(A)(i)(VIII) (making this requirement applicable\\n\\n\\\"beginning not later than the first IEP to be in effect when the\\n\\nchild is 16\\\"). Because C.D. was fourteen or older when the IEPs\\n\\nat issue were proposed, these requirements applied.\\n\\n\\n\\n\\n 1 Roland M. interpreted the IDEA's predecessor statute,\\nsee 910 F.2d at 987, but the text of the provision at issue has\\nnot changed, compare Education for All Handicapped Children Act of\\n1975, Pub. L. No. 94-142 § 612(5), 89 Stat. 733, 781 (1975), with\\n20 U.S.C. § 1412(a)(5)(A).\\n\\n\\n - 6 -\\n\\f II.\\n\\n C.D. has borderline intellectual functioning and\\n\\nsignificant deficits in language ability. She attended public\\n\\nschool in Natick through fifth grade. For middle school, she\\n\\nattended McAuliffe Regional Charter Public School in Framingham,\\n\\nMassachusetts, where she took all of her classes except math in a\\n\\nregular classroom setting. To assist C.D., two private tutors\\n\\nhired by C.D.'s parents attended C.D.'s middle school classes with\\n\\nher.\\n\\n The summer before C.D. entered high school, her parents\\n\\nworked with Natick to develop an IEP for C.D.'s ninth grade year\\n\\nat Natick High School. C.D.'s parents wanted C.D. to continue her\\n\\neducation in a regular classroom setting, with the help of the\\n\\nsame private tutors. School officials explained that only Natick\\n\\nemployees were allowed to teach or tutor students in Natick's\\n\\nclassrooms.\\n\\n Natick was concerned that larger class sizes and more\\n\\nadvanced content in high school would make it difficult for C.D.\\n\\nto access the general education curriculum. It considered placing\\n\\nC.D. in replacement classes in which a modified general education\\n\\ncurriculum is taught by a special education teacher. Ultimately,\\n\\nNatick, in its proposed IEP, chose a third option.\\n\\n The school presented C.D.'s parents with a proposed\\n\\nninth grade IEP, for the 2012-2013 school year, that placed C.D.\\n\\n\\n - 7 -\\n\\fin regular classrooms for her elective courses but in a setting\\n\\ncalled the ACCESS Program for her academic courses. The ACCESS\\n\\nProgram is a self-contained special education program located at\\n\\nNatick High School and designed for students who, like C.D., have\\n\\ncognitive and communication deficits. ACCESS offers a\\n\\nsignificantly modified curriculum, and its students typically earn\\n\\ncertificates rather than high school diplomas.\\n\\n C.D.'s parents rejected the IEP, saying that the ACCESS\\n\\nProgram was an overly \\\"restricted environment\\\" and that C.D.'s\\n\\nplacement there would \\\"hinder\\\" her academic and social growth.\\n\\nThey enrolled C.D. at Learning Prep School, a private school that\\n\\nspecializes in educating students with disabilities.\\n\\n The summer before C.D. was to enter tenth grade, Natick\\n\\npresented to C.D.'s parents an IEP for the 2013-2014 school year\\n\\nthat again placed C.D. in the ACCESS Program for her academic\\n\\nclasses. C.D.'s parents again rejected the IEP, giving the same\\n\\nreasons, and enrolled C.D. at Learning Prep.\\n\\n Before the next school year, the IEP Team reconvened,\\n\\nthis time with the benefit of a fresh set of assessments of C.D.\\n\\nBased on these assessments and on reports of C.D.'s progress at\\n\\nLearning Prep, Natick proposed a new IEP for the 2014-2015 school\\n\\nyear that placed C.D. in a mix of ACCESS classes, replacement\\n\\nclasses, and general education classes. C.D.'s parents rejected\\n\\nthis IEP for two reasons. As they saw it, the proposed schedule\\n\\n\\n - 8 -\\n\\fleft inadequate time for speech and language services. In\\n\\naddition, Natick had not yet conducted a formal postsecondary\\n\\ntransition assessment. As to C.D.'s postsecondary transition, the\\n\\n2012-2013, 2013-2014, and initial 2014-2015 IEPs had stated the\\n\\nparents' goal that C.D. graduate from high school and had provided\\n\\ntransition and vocational services from the school's learning\\n\\ncenter.\\n\\n Natick then performed a formal transition assessment and\\n\\npresented a revised 2014-2015 IEP. This final IEP proposed the\\n\\nsame mix of classes, but extended C.D.'s school day to allow for\\n\\nspeech and language therapy as well as career preparation services.\\n\\nC.D.'s parents rejected this IEP, and C.D. attended Learning Prep\\n\\nfor the 2014-2015 school year.\\n\\n In 2014, C.D.'s parents filed a complaint with the BSEA\\n\\nseeking reimbursement for C.D.'s tuition at Learning Prep. To\\n\\nqualify for reimbursement, the parents had to show that Natick's\\n\\nIEPs for 2012-2013, 2013-2014, and 2014-2015 \\\"had not made a free\\n\\nappropriate public education available.\\\" 2 See 20 U.S.C.\\n\\n§ 1412(a)(10)(C)(ii). After a hearing in May 2015, a BSEA Hearing\\n\\n\\n\\n 2 The transition planning and transition assessment\\nrequirements are procedural. Only certain procedural flaws, such\\nas those that result in the denial of a FAPE or \\\"a deprivation of\\neducational benefits,\\\" are actionable under the IDEA. 20 U.S.C.\\n§ 1415(f)(3)(E)(ii); see also, e.g., R.E. v. N.Y.C. Dep't of Educ.,\\n694 F.3d 167, 195 (2d Cir. 2012) (applying this harmless error\\nprinciple to a claimed violation of the transition requirements).\\n\\n\\n - 9 -\\n\\fOfficer denied the parents' request for reimbursement. The\\n\\nHearing Officer concluded that the IEPs were \\\"reasonably\\n\\ncalculated to provide [C.D.] with a free appropriate public\\n\\neducation in the least restrictive environment.\\\" And the Hearing\\n\\nOfficer found that the facts and testimony presented did not\\n\\nsupport the parents' arguments that the transition assessments and\\n\\nplans were inadequate.3\\n\\n C.D.'s parents sought review of the BSEA's decision in\\n\\nfederal district court. The district court denied the parents'\\n\\nmotion for summary judgment and their supplemental motion for\\n\\nsummary judgment. See C.D. I, 2017 WL 3122654, at *26; C.D. II,\\n\\n2018 WL 3510291, at *4. Giving \\\"due weight\\\" to the decision of\\n\\nthe BSEA, C.D. I, 2017 WL 3122654, at *15, the district court made\\n\\nthree relevant rulings. First, because Endrew F. had been decided\\n\\nwhile the parents' motion for summary judgment was pending, the\\n\\ndistrict court verified that the Hearing Officer had applied a\\n\\nFAPE standard consistent with Endrew F. 4 Id. at *16 (\\\"[T]he\\n\\nstandard articulated in Endrew F. is not materially different from\\n\\nthe standard set forth in\\\" the First Circuit's prior cases and\\n\\n\\\"applied by the hearing officer.\\\"). Second, the district court\\n\\n\\n 3 The Hearing Officer also rejected other arguments not\\npresented on appeal.\\n 4 The district court first remanded in part to the BSEA\\nfor the Hearing Officer to confirm that she had applied a standard\\nconsistent with Endrew F.\\n\\n\\n - 10 -\\n\\ffound it \\\"unclear\\\" whether the BSEA's decision had followed the\\n\\nFirst Circuit's prior cases on the LRE mandate. Id. at *19. And\\n\\nso the district court remanded to the BSEA to determine whether\\n\\nthe 2012-2013 and 2013-2014 IEPs, which proposed to place C.D. in\\n\\nthe ACCESS Program for her academic courses, had provided a FAPE\\n\\nin the LRE. After the BSEA responded with a clarification order,\\n\\nthe district court concluded that \\\"based on the preponderance of\\n\\nthe evidence, the BSEA hearing officer appropriately found that\\n\\nthe district balanced the benefits of mainstreaming against the\\n\\nrestrictions associated with the [ACCESS] classes, and that\\n\\nthe . . . IEPs were reasonably calculated to provide a FAPE in the\\n\\nleast restrictive environment possible.\\\" C.D. II, 2018 WL\\n\\n3510291, at *4. Third, the district court agreed with the BSEA\\n\\nthat the 2012-2013, 2013-2014, and the final 2014-2015 5 IEPs\\n\\ncomplied with the IDEA's transition planning and assessment\\n\\nrequirements. C.D. I, 2017 WL 3122654, at *19, *21.\\n\\n III.\\n\\n C.D.'s parents now argue that the district court applied\\n\\nthe wrong legal standards. They say first that Endrew F. defined\\n\\n\\\"progress appropriate\\\" as \\\"appropriately ambitious\\\" and\\n\\n\\\"challenging\\\" so that the district court was required to ask, in\\n\\n\\n\\n 5 The district court held that any challenges to the\\ninitial 2014-2015 IEP were mooted by that IEP's replacement with\\nthe final 2014-2015 IEP. C.D. I, 2017 WL 3122654, at *21.\\n\\n\\n - 11 -\\n\\fevaluating whether a FAPE was offered, whether the IEPs contained\\n\\nsufficiently \\\"challenging objectives.\\\" Endrew F., 137 S. Ct. at\\n\\n1000. Next, the parents urge us to adopt, and contend that the\\n\\ndistrict court should have applied, a multi-part test from Daniel\\n\\nR.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989),\\n\\nto evaluate whether the IEPs placed C.D. in an overly restrictive\\n\\nenvironment. Finally, C.D.'s parents argue that the district\\n\\ncourt ignored the plain language of the IDEA's transition planning\\n\\nand assessment requirements.\\n\\n Our review of the district court on these legal issues\\n\\nis de novo. See Johnson v. Bos. Pub. Sch., 906 F.3d 182, 191 (1st\\n\\nCir. 2018). We hold that the district court properly applied this\\n\\ncircuit's standards and that those standards are consistent with\\n\\nEndrew F. and with the IDEA. The parents also raise alternative\\n\\narguments that the district court erred in applying law to fact,\\n\\nand we review these fact-dominated rulings deferentially. Id.\\n\\n(quoting Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st\\n\\nCir. 2016)). Finding no errors, we affirm.\\n\\n A.\\n\\n Until Endrew F., the Supreme Court had\\n\\n\\\"declined . . . to endorse any one standard for determining\\\"\\n\\nwhether the services offered in a student's IEP amounted to a FAPE.\\n\\nEndrew F., 137 S. Ct. at 993. This circuit, along with several\\n\\nothers, said that to offer a FAPE, an IEP must be \\\"individually\\n\\n\\n - 12 -\\n\\fdesigned\\\" and \\\"reasonably calculated to confer a meaningful\\n\\neducational benefit.\\\" D.B., 675 F.3d at 34-35 (citing D.S. v.\\n\\nBayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010), then citing\\n\\nD.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598\\n\\n(2d Cir. 2005), and then citing Deal v. Hamilton Cty. Bd. of Educ.,\\n\\n392 F.3d 840, 862 (6th Cir. 2004)). After Endrew F., this court\\n\\nconfirmed, in Johnson v. Boston Public Schools, 906 F.3d 182 (1st\\n\\nCir. 2018), that this \\\"meaningful educational benefit\\\" standard\\n\\nfor evaluating whether an IEP offers a FAPE \\\"comports\\\" with the\\n\\nstandard \\\"dictated by Endrew F.\\\"6 Id. at 194-95.\\n\\n C.D.'s parents say that our Johnson decision restricted\\n\\nits view to Endrew F.'s language about \\\"progress appropriate in\\n\\nlight of the child's circumstances,\\\" Endrew F., 137 S. Ct. at 1001,\\n\\nand that we have yet to examine language in Endrew F. about\\n\\n\\\"ambitious\\\" and \\\"challenging\\\" goals, id. at 1000. On the parents'\\n\\nreading, after Endrew F., courts must ask not only whether an IEP\\n\\noffers meaningful educational progress, but also, separately,\\n\\nwhether the IEP's objectives are ambitious and challenging.\\n\\n\\n\\n\\n 6 Other circuits that use a \\\"meaningful benefit\\\" standard\\nhave held the same. See L.H. v. Hamilton Cty. Dep't of Educ., 900\\nF.3d 779, 792 n.5 (6th Cir. 2018); Mr. P. v. W. Hartford Bd. of\\nEduc., 885 F.3d 735, 757 (2d Cir.), cert. denied sub nom. Mr. P.\\nv. W. Hartford Bd. of Educ., 139 S. Ct. 322 (2018); K.D. ex rel.\\nDunn v. Downingtown Area Sch. Dist., 904 F.3d 248, 254 (3d Cir.\\n2018).\\n\\n\\n - 13 -\\n\\f The parents misread Endrew F., which did not construe\\n\\nthe FAPE standard as two independent tests. That decision's core\\n\\nholding was that the \\\"merely more than de minimis\\\" educational\\n\\nbenefit standard that had been used by the appellate court to\\n\\nevaluate Endrew's IEPs was insufficiently \\\"demanding.\\\" Id. at\\n\\n1000-01; see also id. at 997 (quoting Endrew F. ex rel. Joseph F.\\n\\nv. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir.\\n\\n2015)). Endrew F. defined a FAPE -- \\\"an educational program\\n\\nreasonably calculated to enable a child to make progress\\n\\nappropriate in light of the child's circumstances,\\\" id. at\\n\\n1001 -- in contrast to this rejected, \\\"de minimis\\\" standard. It\\n\\nwas in this context that the Supreme Court employed the terms\\n\\n\\\"ambitious\\\" and \\\"challenging.\\\" The Court explained that, for many\\n\\nchildren with disabilities integrated into \\\"the regular\\n\\nclassroom,\\\" an \\\"appropriately ambitious\\\" goal is \\\"advancement from\\n\\ngrade to grade.\\\" Id. at 1000. And the Court stated that, for\\n\\nthose \\\"not fully integrated in the regular classroom,\\\" the\\n\\nparticular \\\"goals may differ, but every child should have the\\n\\nchance to meet challenging objectives.\\\" Id. In short, Endrew F.\\n\\nused terms like \\\"demanding,\\\" \\\"challenging,\\\" and \\\"ambitious\\\" to\\n\\ndefine \\\"progress appropriate in light of the child's\\n\\ncircumstances,\\\" not to announce a separate dimension of the FAPE\\n\\nrequirement. Id. at 1000-01; cf. R.F. v. Cecil Cty. Pub. Sch.,\\n\\n\\n\\n\\n - 14 -\\n\\f919 F.3d 237, 252 (4th Cir. 2019) (defining adequate progress and\\n\\n\\\"challenging objectives\\\" under Endrew F.).\\n\\n Under both Endrew F. and our precedent, a court\\n\\nevaluating whether an IEP offers a FAPE must determine whether the\\n\\nIEP was reasonably calculated to confer a meaningful educational\\n\\nbenefit in light of the child's circumstances. See Johnson, 906\\n\\nF.3d at 195; cf. K.D. ex rel. Dunn v. Downingtown Area Sch. Dist.,\\n\\n904 F.3d 248, 256 (3d Cir. 2018) (equating meaningful progress and\\n\\nchallenging objectives). Depending on context, determining\\n\\nwhether an IEP is reasonably calculated to offer meaningful\\n\\nprogress may or may not require a sub-inquiry into how challenging\\n\\nthe plan is. Here, the district court did just what Endrew F. and\\n\\nJohnson require in affirming the BSEA's conclusion that the 2012-\\n\\n2013 and 2013-2014 IEPs offered a FAPE.7 See C.D. I, 2017 WL\\n\\n3122654, at *16 (describing the standard applied by the BSEA);\\n\\nC.D. II, 2018 WL 3510291, at *4 (affirming the BSEA's FAPE\\n\\nconclusion).\\n\\n The district court also did not err in applying that\\n\\nstandard to the facts in the record. The parents maintain that\\n\\nC.D. would not have made appropriate progress in the ACCESS\\n\\nProgram, but the district court reasonably concluded that the\\n\\n\\n 7 C.D.'s parents argue that, in evaluating the 2012-2013\\nand 2013-2014 IEPs, the BSEA misapplied the First Circuit's FAPE\\nstandard by omitting the word \\\"meaningful\\\" from its analysis. But\\nthe BSEA did not overlook that operative word.\\n\\n\\n - 15 -\\n\\frecord supported the BSEA's finding that C.D., given her diagnosed\\n\\nintellectual disability and serious language deficits, could be\\n\\nexpected to make meaningful progress in the ACCESS program and\\n\\ngeneral education electives. See C.D. II, 2018 WL 3510291, at *3-\\n\\n4.\\n\\n B.\\n\\n C.D.'s parents argue next that the 2012-2013 and 2013-\\n\\n2014 IEPs violated the LRE mandate by proposing to place C.D. in\\n\\nthe ACCESS Program, which the parents view as overly restrictive.\\n\\nThey urge us to adopt, and argue that the district court should\\n\\nhave applied, the multi-step test from the Fifth Circuit's decision\\n\\nin Daniel R.R. to evaluate this claim.8 See 874 F.2d at 1048-50.\\n\\nWe reject both arguments. Instead, we affirm the district court,\\n\\nwhich properly relied on our decision in Roland M. in ruling that\\n\\nthe IEPs did not violate the LRE mandate.\\n\\n Courts that use the Daniel R.R. methodology evaluate\\n\\ncompliance with the LRE mandate in two steps, asking first \\\"whether\\n\\neducation in the regular classroom, with the use of supplementary\\n\\n\\n\\n 8 Natick and the BSEA argue that C.D.'s parents waived\\ntheir argument based on Daniel R.R. by neglecting to \\\"set forth\\n[its] multifactor test\\\" before the district court. But we deem\\nsufficient the parents' reliance on Daniel R.R. in the district\\ncourt; the parents' motions cited to and the district court quoted\\nfrom Daniel R.R. See C.D. II, 2018 WL 3510291, at *3; see also\\nRivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)\\n(finding no waiver where \\\" the district court was not left . . . to\\nferret out an evanescent needle from an outsized paper haystack\\\").\\n\\n\\n - 16 -\\n\\faids and services, can be achieved satisfactorily,\\\" and, if the\\n\\nchild cannot be educated in the regular classroom, asking second\\n\\n\\\"whether the school has mainstreamed the child to the maximum\\n\\nextent appropriate.\\\" Id. at 1048. In answering the first\\n\\nquestion, Daniel R.R. instructs courts to consider whether the\\n\\ndistrict has made reasonable efforts to accommodate the child in\\n\\na regular classroom; the benefits, both academic and non-academic,\\n\\navailable to the child in a regular class compared to the benefits,\\n\\nboth academic and non-academic, available in a more restricted\\n\\nclass; and the effects of inclusion on other children in the\\n\\nregular classroom. Id. at 1048-49; see also Oberti by Oberti v.\\n\\nBd. of Educ., 995 F.2d 1204, 1217-18 (3d Cir. 1993).\\n\\n The parents frame their claim as presenting the\\n\\nfollowing question, which they say is one of first impression in\\n\\nthis circuit: When does a school's decision to educate a child\\n\\nwith disabilities in a setting other than the regular classroom\\n\\nviolate the IDEA's LRE mandate? Several other circuits, the\\n\\nparents observe, have used the Daniel R.R. test to evaluate\\n\\nparents' claims that their children should be mainstreamed.9 See\\n\\n\\n\\n 9 The Fourth and Eighth Circuits have applied the Sixth\\nCircuit's test from Roncker v. Walter, 700 F.2d 1058 (6th Cir.\\n1983), which asks \\\"whether the services which make . . . [an\\nalternative] placement superior could be feasibly provided in a\\nnon-segregated setting.\\\" Id. at 1063; see also DeVries v. Fairfax\\nCty. Sch. Bd., 882 F.2d 876, 878-79 (4th Cir. 1989); A.W. v. Nw.\\nR–1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987).\\n\\n\\n - 17 -\\n\\fOberti, 995 F.2d at 1216-17; T.M., 752 F.3d at 161-62; L.B. ex\\n\\nrel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 976-77 (10th Cir.\\n\\n2004); Sacramento City Unified Sch. Dist. v. Rachel H. ex rel.\\n\\nHolland, 14 F.3d 1398, 1400-01 (9th Cir. 1994). The parents'\\n\\npremise is incorrect. There is no ground for distinguishing our\\n\\nprior cases, like Roland M., involving parents who sought a more\\n\\nrestrictive placement than the one proposed in the IEP.10 Those\\n\\ncases and this one in fact present the same question: Did the\\n\\nIEP's proposed placement violate the IDEA's LRE mandate?\\n\\n The text of § 1412(a)(5)(A) and prior precedent provide\\n\\nthe guidance we need to evaluate whether Natick complied with the\\n\\nLRE mandate here. In eschewing the Daniel R.R. test because \\\"[t]he\\n\\nAct itself provides enough of a framework,\\\" we join the Seventh\\n\\nCircuit. See Beth B. v. Van Clay, 282 F.3d 493, 499 (7th Cir.\\n\\n2002) (declining to adopt the Daniel R.R. test).\\n\\n C.D.'s parents argue that the Daniel R.R. test adds\\n\\nneeded \\\"complexity\\\" to the statute's terms. But determining an\\n\\nappropriate placement for a disabled child is already a complex\\n\\ntask. It is one that \\\"involves choices among educational policies\\n\\nand theories -- choices which courts, relatively speaking, are\\n\\n\\n 10 See, e.g., C.G. ex rel. A.S. v. Five Town Cmty. Sch.\\nDist., 513 F.3d 279, 287 (1st Cir. 2008) (holding that the district\\ncourt \\\"supportably concluded\\\" that public school day placement\\nrather than residential placement requested by parents was least\\nrestrictive environment appropriate); Roland M., 910 F.2d at 993;\\nAbrahamson v. Hershman, 701 F.2d 223, 229-30 (1st Cir. 1983).\\n\\n\\n - 18 -\\n\\fpoorly equipped to make.\\\" Roland M., 910 F.2d at 992; see also\\n\\nC.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 289\\n\\n(1st Cir. 2008) (acknowledging \\\"the truism that courts should\\n\\nrecognize the expertise of educators with respect to the efficacy\\n\\nof educational programs\\\"). That is why the IDEA \\\"vests\\\" state and\\n\\nschool \\\"officials with responsibility for\\\" choosing a child's\\n\\nplacement. Endrew F., 137 S. Ct. at 1001. And it is why courts\\n\\nowe respect and deference to the expert decisions of school\\n\\nofficials and state administrative boards. See Lessard v. Wilton-\\n\\nLyndenborough Coop. Sch. Dist. (Lessard II), 592 F.3d 267, 270\\n\\n(1st Cir. 2010) (\\\"The standard of review is thus deferential to\\n\\nthe educational authorities, who have 'primary responsibility for\\n\\nformulating the education to be accorded a handicapped child, and\\n\\nfor choosing the educational method most suitable to the child's\\n\\nneeds.'\\\" (quoting Rowley, 458 U.S. at 207)). There is no need to\\n\\nadd complexity to the LRE mandate in the form of Daniel R.R.'s\\n\\njudicial gloss, and every reason not to do so.\\n\\n We proceed to review the district court's decision under\\n\\n§ 1412(a)(5)(A) and our cases interpreting it. Again, the IDEA\\n\\nmandates, at § 1412(a)(5)(A):\\n\\n To the maximum extent appropriate, children\\n with disabilities . . . are educated with\\n children who are not disabled, and special\\n classes, separate schooling, or other removal\\n of children with disabilities from the regular\\n educational environment occurs only when the\\n nature or severity of the disability of a\\n\\n\\n - 19 -\\n\\f child is such that education in regular\\n classes with the use of supplementary aids and\\n services cannot be achieved satisfactorily.\\n\\n20 U.S.C. § 1412(a)(5)(A). Our cases have \\\"weighed\\\" this\\n\\npreference for mainstreaming \\\"in concert with the\\\" FAPE mandate.\\n\\nRoland M., 910 F.2d at 992-93. The two requirements \\\"operate in\\n\\ntandem to create a continuum\\\" of possible educational\\n\\nenvironments, each offering a different mix of benefits (and costs)\\n\\nfor a student's academic, as well as social and emotional,\\n\\nprogress.11 Id. For schools, complying with the two mandates\\n\\nmeans evaluating potential placements' \\\"marginal benefits\\\" and\\n\\ncosts and choosing a placement that strikes an appropriate balance\\n\\nbetween the restrictiveness of the placement and educational\\n\\nprogress. Id.; see also Amann v. Stow Sch. Sys., 982 F.2d 644,\\n\\n650 (1st Cir. 1992) (per curiam) (phrasing the question as whether\\n\\nthe \\\"IEP 'reasonably calculated' the balance between academic\\n\\nprogress and\\\" restrictiveness).\\n\\n The district court correctly identified this legal\\n\\nframework. Quoting Roland M., the district court explained that\\n\\n\\\"'[m]ainstreaming may not be ignored, even to fulfill substantive\\n\\neducational criteria.' Rather, the benefits to be gained from\\n\\n\\n\\n 11 We have recognized that educating students with\\ndisabilities with their nondisabled peers can have benefits for\\ndisabled students' social and communication skills. See Lenn v.\\nPortland Sch. Comm., 998 F.2d 1083, 1090 & n.7 (1st Cir. 1993)\\n(citing Oberti, 995 F.2d at 1216-17).\\n\\n\\n - 20 -\\n\\fmainstreaming must be weighed against the educational improvements\\n\\nthat could be attained in a more restrictive (that is, non-\\n\\nmainstream) environment.\\\" 12 C.D. II, 2018 WL 3510291, at *3\\n\\n(internal citation omitted) (quoting Roland M., 910 F.2d at 993)).\\n\\n The parents argue, again relying on applications of\\n\\nDaniel R.R., that the district court erred in failing to ask\\n\\nwhether C.D. could have been educated in the regular classroom\\n\\nconsidering \\\"the whole range of supplemental aids and services.\\\"\\n\\nOberti, 995 F.2d at 1216. The record belies this contention. The\\n\\ndistrict court here verified that Natick and the BSEA had\\n\\nconsidered \\\"the nature and severity\\\" of C.D.'s disability as well\\n\\nas the impact of \\\"supplementary aids and services.\\\" 20 U.S.C.\\n\\n§ 1412(a)(5)(A). It noted that the BSEA and Natick had both\\n\\nexamined three potential placements: the regular classroom,\\n\\nreplacement classes, and the ACCESS Program. C.D. II, 2018 WL\\n\\n3510291, at *3. Then the district court found that evidence\\n\\nsupported the BSEA's and Natick's conclusion that the ACCESS\\n\\nProgram was appropriate because of C.D.'s particular\\n\\ndisability -- an \\\"intellectual disability in conjunction with\\n\\n\\n\\n\\n 12 The parents argue that the district court \\\"erred where\\nit did not even articulate the need to balance non-academic\\nbenefits against the putative academic advantages of a\\nsubstantially separate classroom.\\\" But the district court\\nproperly understood the balancing inquiry outlined in Roland M.\\n\\n\\n - 21 -\\n\\fweaknesses in receptive and expressive language.\\\"13 Id. (internal\\n\\nquotation marks omitted).\\n\\n We see no error in the district court's appropriately\\n\\ndeferential analysis. As we have emphasized, the IDEA vests state\\n\\nand local educational officials, not federal courts, with the\\n\\nprimary responsibility to make placement decisions consistent with\\n\\n§ 1412(a)(5)(A).\\n\\n C.\\n\\n C.D.'s parents next argue that the district court\\n\\nignored the plain language of the IDEA in affirming the BSEA's\\n\\nruling that the IEPs complied with the statute's transition\\n\\nprovision. Not so.\\n\\n We have previously held that the IDEA \\\"does not require\\n\\na stand-alone transition plan.\\\" Lessard v. Wilton Lyndeborough\\n\\nCoop. Sch. Dist. (Lessard I), 518 F.3d 18, 24 (1st Cir. 2008).\\n\\nNor does the statute require that the underlying transition\\n\\nassessments take a particular form. See 20 U.S.C.\\n\\n§ 1414(d)(1)(A)(i)(VIII). Indeed, there is no restriction on the\\n\\nmeans of gathering information about a student's interests or\\n\\nabilities that may be relevant to the development of postsecondary\\n\\ntransition goals. See, e.g., Mass. Dep't of Elementary &\\n\\n\\n 13 C.D.'s parents' dispute of a related factual finding\\nmade by the BSEA in its initial ruling on the LRE issue is\\nmisplaced. The district court ultimately reviewed the facts as\\nclarified by the BSEA.\\n\\n\\n - 22 -\\n\\fSecondary Educ., Transitional Assessment in the Secondary\\n\\nTransition Planning Process, Technical Advisory SPED 2014-4, at 1-\\n\\n3 (Apr. 9, 2014) (declining to adopt 'a restrictive approach which\\n\\nmight seem to imply the required use of highly specialized formal\\n\\nassessments for each student\\\").\\n\\n The district court did not err in articulating or\\n\\napplying these transition requirements. It discussed the\\n\\nstatute's assessment and planning dimensions, it cited repeatedly\\n\\nto Massachusetts' guidance implementing the federal provision, and\\n\\nit relied on case law correctly applying the transition\\n\\nrequirement. See C.D. I, 2017 WL 3122654, at *19, *21 (citing\\n\\nSebastian M. v. King Philip Reg'l Sch. Dist., 774 F. Supp. 2d 393,\\n\\n407 (D. Mass. 2011), aff'd, 685 F.3d 79 (1st Cir. 2012)).\\n\\n The district court then reasonably applied those rules\\n\\nin affirming the BSEA's ruling. The IEPs stated grade-appropriate\\n\\ngoals and services designed to prepare C.D. for the post-secondary\\n\\ntransition.14 See Lessard I, 518 F.3d at 25; see also, e.g.,\\n\\n\\n\\n 14 Specifically, C.D.'s 2012-2013 IEP stated that C.D.'s\\nparents hoped she would receive a high school diploma and\\nvocational training. The IEP outlined educational goals and\\nservices that would have helped C.D. make progress toward that\\ndiploma, and it also provided for vocational services from the\\nschool's learning center. The 2013-2014 IEP was similar, and it\\nadded opportunities to meet with the school's guidance counselor\\nand career specialist to discuss post-secondary plans. The final\\n2014-2015 IEP further proposed educational and vocational services\\nand set out specific goals related to job readiness, job coaching,\\nand independent living.\\n\\n\\n - 23 -\\n\\fRodrigues v. Fort Lee Bd. of Educ., 458 F. App'x 124, 128 (3d Cir.\\n\\n2011) (finding adequate an IEP that listed a transition goal and\\n\\nnoted available services). And the 2012-2013 and 2013-2014 plans\\n\\nreflected and were developed based on a transition-specific\\n\\ndiscussion at the 2012-2013 IEP meeting and on extensive\\n\\neducational and psychological evaluations done of C.D. and\\n\\nprovided to Natick as part of the IEP development process. The\\n\\nfinal 2014-2015 IEP reflected and was based on assessments like\\n\\nthese as well as a formal transition assessment. All three IEPs\\n\\ncontained \\\"appropriate measurable postsecondary goals based upon\\n\\nage appropriate assessments.\\\" 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa).\\n\\n IV.\\n\\n Affirmed.\\n\\n\\n\\n\\n - 24 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399569/\", \"author_raw\": \"the Judge David L. Bazelon Center for Mental Health Law\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622316/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: C.D., BY AND THROUGH Her Parents and Next Friends, M.D. and P.D.; M.D.; P.D., Plaintiffs, Appellants, v. NATICK PUBLIC SCHOOL DISTRICT; Bureau of Special Education Appeals, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1794\n\n C.D., by and through her Parents and Next Friends, M.D. and\n P.D.; M.D.; P.D.,\n\n Plaintiffs, Appellants,\n\n v.\n\n NATICK PUBLIC SCHOOL DISTRICT; BUREAU OF SPECIAL EDUCATION\n APPEALS,\n\n Defendants, Appellees.\n\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\n\n\n Before\n\n Torruella, Lynch, and Kayatta,\n Circuit Judges.\n\n\n Benjamin J. Wish, with whom Todd & Weld, LLP, Laurie R.\nMartucci, and Martucci Law Associates were on brief, for\nappellants.\n Selene Almazan-Altobelli and Ellen Saideman on brief for\nCouncil of Parent Attorneys and Advocates, Inc., amicus curiae.\n Ira A. Burnim, Lewis Bossing, Elizabeth B. McCallum, Paul E.\nPoirot, William T. DeVinney, and Baker Hostetler, LLP on brief for\nthe Judge David L. Bazelon Center for Mental Health Law,\nAssociation of University Centers on Disabilities, Disability Law\nCenter, National Center for Learning Disabilities, National Center\nfor Youth Law, National Disability Rights Network, and National\nDown Syndrome Congress, amici curiae.\n Felicia S. Vasudevan, with whom Murphy, Hesse, Toomey &\n\fLehane, LLP was on brief, for Natick Public School District.\n Anna Rachel Dray-Siegel, Assistant Attorney General, with\nwhom Maura Healey, Attorney General of Massachusetts, was on brief,\nfor Bureau of Special Education Appeals.\n Michael J. Long and Long & DiPietro, LLP on brief for the\nMassachusetts Association of School Superintendents, amicus\ncuriae.\n Francisco M. Negrón, Jr., Cristine M.D. Goldman, Colleen\nShea, Colby Brunt, and Stoneman, Chandler & Miller, LLP on brief\nfor National School Boards Association and Massachusetts\nAssociation of School Committees, amici curiae.\n\n\n May 22, 2019\n\f LYNCH, Circuit Judge. The Individuals with Disabilities\n\nEducation Act (IDEA) requires that students with certain\n\ndisabilities be provided a \"[f]ree appropriate public education\"\n\n(FAPE) in the \"[l]east restrictive environment\" (LRE) appropriate\n\nfor each student. 20 U.S.C. § 1412(a)(1), (5). Under the IDEA\n\nand Massachusetts law, the individualized education programs\n\n(IEPs) of certain disabled students must also contain\n\npostsecondary transition goals and services based on age-\n\nappropriate assessments. Id. § 1414(d)(1)(A)(i)(VIII); Mass.\n\nGen. Laws ch. 71B, § 2.\n\n Appellants are C.D., a resident of Natick,\n\nMassachusetts, who qualified as a child with a disability under\n\nthe IDEA, and her parents. They challenge this circuit's prior\n\ninterpretations of these IDEA requirements as incomplete or as\n\ninconsistent with the IDEA and current Supreme Court case law.\n\nThe parents seek reimbursement for at least three years of C.D.'s\n\neducation in a specialized private school. Rejecting these\n\nchallenges, we affirm the district court, which upheld a decision\n\nof the Massachusetts Bureau of Special Education Appeals (BSEA)\n\nruling that the Natick Public School District (Natick) had complied\n\nwith the FAPE, LRE, and transition requirements in proposed IEPs\n\nfor C.D. See C.D. v. Natick Pub. Sch. Dist. (C.D. II), No. 15-\n\n13617-FDS, 2018 WL 3510291, at *1 (D. Mass. July 20, 2018); C.D.\n\n\n\n\n - 3 -\n\fv. Natick Pub. Sch. Dist. (C.D. I), No. 15-13617-FDS, 2017 WL\n\n3122654, at *1 (D. Mass. July 21, 2017).\n\n I.\n\n The IDEA offers states federal funds for the education\n\nof children with disabilities in exchange for the states'\n\ncommitments to comply with the IDEA's directives, including its\n\nFAPE and LRE requirements. See Arlington Cent. Sch. Dist. Bd. of\n\nEduc. v. Murphy, 548 U.S. 291, 295 (2006).\n\n A FAPE \"comprises 'special education and related\n\nservices' -- both 'instruction' tailored to meet a child's 'unique\n\nneeds' and sufficient 'supportive services' to permit the child to\n\nbenefit from that instruction.\" Fry v. Napoleon Cmty. Sch., 137\n\nS. Ct. 743, 748–49 (2017) (quoting 20 U.S.C. § 1401(9), (26),\n\n(29)). \"The primary vehicle for delivery of a FAPE is an IEP.\"\n\nD.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.\n\n2012) (internal quotation marks omitted). IEPs are \"comprehensive\n\nplan[s]\" that are developed by the child's \"IEP Team (which\n\nincludes teachers, school officials, and the child's parents)\" and\n\nthat \"must be drafted in compliance with a detailed set of\n\nprocedures.\" Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.\n\nCt. 988, 994 (2017) (internal quotation marks omitted). Under the\n\nSupreme Court's recent decision in Endrew F. v. Douglas County\n\nSchool District RE-1, 137 S. Ct. 988 (2017), the services offered\n\nin an IEP amount to a FAPE if they are \"reasonably calculated to\n\n\n - 4 -\n\fenable a child to make progress appropriate in light of the child's\n\ncircumstances.\" Id. at 1001.\n\n The IDEA also requires states receiving federal funds to\n\neducate disabled children in the \"[l]east restrictive environment\"\n\nappropriate for each child. 20 U.S.C. § 1412(a)(5). The statute\n\nmandates at § 1412(a)(5)(A):\n\n To the maximum extent appropriate, children\n with disabilities . . . are educated with\n children who are not disabled, and special\n classes, separate schooling, or other removal\n of children with disabilities from the regular\n educational environment occurs only when the\n nature or severity of the disability of a\n child is such that education in regular\n classes with the use of supplementary aids and\n services cannot be achieved satisfactorily.\n\nId. The Supreme Court has characterized this LRE mandate as\n\nembodying a \"preference\" for \"mainstreaming\" students with\n\ndisabilities in \"the regular classrooms of a public school system.\"\n\nBd. of Educ. v. Rowley, 458 U.S. 176, 202-03 (1982); see also\n\nEndrew F., 137 S. Ct. at 999 (\"[T]he IDEA requires that children\n\nwith disabilities receive education in the regular classroom\n\n'whenever possible'\" (quoting Rowley, 458 U.S. at 202)). But the\n\nIDEA's preference for mainstreaming \"is not absolute.\" T.M. ex\n\nrel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 162 (2d Cir.\n\n2014); see also Rowley, 458 U.S. at 197 n.21 (\"The Act's use of\n\nthe word 'appropriate' . . . reflect[s] Congress' recognition that\n\nsome settings simply are not suitable environments for . . . some\n\n\n\n\n - 5 -\n\fhandicapped children.\"). Instead, as we explained in Roland M.\n\nv. Concord School Committee, 910 F.2d 983 (1st Cir. 1990), \"the\n\ndesirability of mainstreaming must be weighed in concert with the\n\nAct's mandate for educational improvement.\"1 Id. at 993.\n\n The final IDEA requirement at issue here is the\n\ninstruction at § 1414(d)(1)(A)(i)(VIII) that certain students'\n\nIEPs \"include[] . . . appropriate measurable postsecondary goals\n\nbased upon age appropriate transition assessments related to\n\ntraining, education, employment, and . . . independent living\n\nskills\" along with \"the transition services (including courses of\n\nstudy) needed to assist the child in reaching those goals.\" 20\n\nU.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb). Massachusetts has made\n\nthese transition requirements applicable starting at age fourteen.\n\nSee Mass. Gen. Laws ch. 71B, § 2; see also 20 U.S.C.\n\n§ 1414(d)(1)(A)(i)(VIII) (making this requirement applicable\n\n\"beginning not later than the first IEP to be in effect when the\n\nchild is 16\"). Because C.D. was fourteen or older when the IEPs\n\nat issue were proposed, these requirements applied.\n\n\n\n\n 1 Roland M. interpreted the IDEA's predecessor statute,\nsee 910 F.2d at 987, but the text of the provision at issue has\nnot changed, compare Education for All Handicapped Children Act of\n1975, Pub. L. No. 94-142 § 612(5), 89 Stat. 733, 781 (1975), with\n20 U.S.C. § 1412(a)(5)(A).\n\n\n - 6 -\n\f II.\n\n C.D. has borderline intellectual functioning and\n\nsignificant deficits in language ability. She attended public\n\nschool in Natick through fifth grade. For middle school, she\n\nattended McAuliffe Regional Charter Public School in Framingham,\n\nMassachusetts, where she took all of her classes except math in a\n\nregular classroom setting. To assist C.D., two private tutors\n\nhired by C.D.'s parents attended C.D.'s middle school classes with\n\nher.\n\n The summer before C.D. entered high school, her parents\n\nworked with Natick to develop an IEP for C.D.'s ninth grade year\n\nat Natick High School. C.D.'s parents wanted C.D. to continue her\n\neducation in a regular classroom setting, with the help of the\n\nsame private tutors. School officials explained that only Natick\n\nemployees were allowed to teach or tutor students in Natick's\n\nclassrooms.\n\n Natick was concerned that larger class sizes and more\n\nadvanced content in high school would make it difficult for C.D.\n\nto access the general education curriculum. It considered placing\n\nC.D. in replacement classes in which a modified general education\n\ncurriculum is taught by a special education teacher. Ultimately,\n\nNatick, in its proposed IEP, chose a third option.\n\n The school presented C.D.'s parents with a proposed\n\nninth grade IEP, for the 2012-2013 school year, that placed C.D.\n\n\n - 7 -\n\fin regular classrooms for her elective courses but in a setting\n\ncalled the ACCESS Program for her academic courses. The ACCESS\n\nProgram is a self-contained special education program located at\n\nNatick High School and designed for students who, like C.D., have\n\ncognitive and communication deficits. ACCESS offers a\n\nsignificantly modified curriculum, and its students typically earn\n\ncertificates rather than high school diplomas.\n\n C.D.'s parents rejected the IEP, saying that the ACCESS\n\nProgram was an overly \"restricted environment\" and that C.D.'s\n\nplacement there would \"hinder\" her academic and social growth.\n\nThey enrolled C.D. at Learning Prep School, a private school that\n\nspecializes in educating students with disabilities.\n\n The summer before C.D. was to enter tenth grade, Natick\n\npresented to C.D.'s parents an IEP for the 2013-2014 school year\n\nthat again placed C.D. in the ACCESS Program for her academic\n\nclasses. C.D.'s parents again rejected the IEP, giving the same\n\nreasons, and enrolled C.D. at Learning Prep.\n\n Before the next school year, the IEP Team reconvened,\n\nthis time with the benefit of a fresh set of assessments of C.D.\n\nBased on these assessments and on reports of C.D.'s progress at\n\nLearning Prep, Natick proposed a new IEP for the 2014-2015 school\n\nyear that placed C.D. in a mix of ACCESS classes, replacement\n\nclasses, and general education classes. C.D.'s parents rejected\n\nthis IEP for two reasons. As they saw it, the proposed schedule\n\n\n - 8 -\n\fleft inadequate time for speech and language services. In\n\naddition, Natick had not yet conducted a formal postsecondary\n\ntransition assessment. As to C.D.'s postsecondary transition, the\n\n2012-2013, 2013-2014, and initial 2014-2015 IEPs had stated the\n\nparents' goal that C.D. graduate from high school and had provided\n\ntransition and vocational services from the school's learning\n\ncenter.\n\n Natick then performed a formal transition assessment and\n\npresented a revised 2014-2015 IEP. This final IEP proposed the\n\nsame mix of classes, but extended C.D.'s school day to allow for\n\nspeech and language therapy as well as career preparation services.\n\nC.D.'s parents rejected this IEP, and C.D. attended Learning Prep\n\nfor the 2014-2015 school year.\n\n In 2014, C.D.'s parents filed a complaint with the BSEA\n\nseeking reimbursement for C.D.'s tuition at Learning Prep. To\n\nqualify for reimbursement, the parents had to show that Natick's\n\nIEPs for 2012-2013, 2013-2014, and 2014-2015 \"had not made a free\n\nappropriate public education available.\" 2 See 20 U.S.C.\n\n§ 1412(a)(10)(C)(ii). After a hearing in May 2015, a BSEA Hearing\n\n\n\n 2 The transition planning and transition assessment\nrequirements are procedural. Only certain procedural flaws, such\nas those that result in the denial of a FAPE or \"a deprivation of\neducational benefits,\" are actionable under the IDEA. 20 U.S.C.\n§ 1415(f)(3)(E)(ii); see also, e.g., R.E. v. N.Y.C. Dep't of Educ.,\n694 F.3d 167, 195 (2d Cir. 2012) (applying this harmless error\nprinciple to a claimed violation of the transition requirements).\n\n\n - 9 -\n\fOfficer denied the parents' request for reimbursement. The\n\nHearing Officer concluded that the IEPs were \"reasonably\n\ncalculated to provide [C.D.] with a free appropriate public\n\neducation in the least restrictive environment.\" And the Hearing\n\nOfficer found that the facts and testimony presented did not\n\nsupport the parents' arguments that the transition assessments and\n\nplans were inadequate.3\n\n C.D.'s parents sought review of the BSEA's decision in\n\nfederal district court. The district court denied the parents'\n\nmotion for summary judgment and their supplemental motion for\n\nsummary judgment. See C.D. I, 2017 WL 3122654, at *26; C.D. II,\n\n2018 WL 3510291, at *4. Giving \"due weight\" to the decision of\n\nthe BSEA, C.D. I, 2017 WL 3122654, at *15, the district court made\n\nthree relevant rulings. First, because Endrew F. had been decided\n\nwhile the parents' motion for summary judgment was pending, the\n\ndistrict court verified that the Hearing Officer had applied a\n\nFAPE standard consistent with Endrew F. 4 Id. at *16 (\"[T]he\n\nstandard articulated in Endrew F. is not materially different from\n\nthe standard set forth in\" the First Circuit's prior cases and\n\n\"applied by the hearing officer.\"). Second, the district court\n\n\n 3 The Hearing Officer also rejected other arguments not\npresented on appeal.\n 4 The district court first remanded in part to the BSEA\nfor the Hearing Officer to confirm that she had applied a standard\nconsistent with Endrew F.\n\n\n - 10 -\n\ffound it \"unclear\" whether the BSEA's decision had followed the\n\nFirst Circuit's prior cases on the LRE mandate. Id. at *19. And\n\nso the district court remanded to the BSEA to determine whether\n\nthe 2012-2013 and 2013-2014 IEPs, which proposed to place C.D. in\n\nthe ACCESS Program for her academic courses, had provided a FAPE\n\nin the LRE. After the BSEA responded with a clarification order,\n\nthe district court concluded that \"based on the preponderance of\n\nthe evidence, the BSEA hearing officer appropriately found that\n\nthe district balanced the benefits of mainstreaming against the\n\nrestrictions associated with the [ACCESS] classes, and that\n\nthe . . . IEPs were reasonably calculated to provide a FAPE in the\n\nleast restrictive environment possible.\" C.D. II, 2018 WL\n\n3510291, at *4. Third, the district court agreed with the BSEA\n\nthat the 2012-2013, 2013-2014, and the final 2014-2015 5 IEPs\n\ncomplied with the IDEA's transition planning and assessment\n\nrequirements. C.D. I, 2017 WL 3122654, at *19, *21.\n\n III.\n\n C.D.'s parents now argue that the district court applied\n\nthe wrong legal standards. They say first that Endrew F. defined\n\n\"progress appropriate\" as \"appropriately ambitious\" and\n\n\"challenging\" so that the district court was required to ask, in\n\n\n\n 5 The district court held that any challenges to the\ninitial 2014-2015 IEP were mooted by that IEP's replacement with\nthe final 2014-2015 IEP. C.D. I, 2017 WL 3122654, at *21.\n\n\n - 11 -\n\fevaluating whether a FAPE was offered, whether the IEPs contained\n\nsufficiently \"challenging objectives.\" Endrew F., 137 S. Ct. at\n\n1000. Next, the parents urge us to adopt, and contend that the\n\ndistrict court should have applied, a multi-part test from Daniel\n\nR.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989),\n\nto evaluate whether the IEPs placed C.D. in an overly restrictive\n\nenvironment. Finally, C.D.'s parents argue that the district\n\ncourt ignored the plain language of the IDEA's transition planning\n\nand assessment requirements.\n\n Our review of the district court on these legal issues\n\nis de novo. See Johnson v. Bos. Pub. Sch., 906 F.3d 182, 191 (1st\n\nCir. 2018). We hold that the district court properly applied this\n\ncircuit's standards and that those standards are consistent with\n\nEndrew F. and with the IDEA. The parents also raise alternative\n\narguments that the district court erred in applying law to fact,\n\nand we review these fact-dominated rulings deferentially. Id.\n\n(quoting Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st\n\nCir. 2016)). Finding no errors, we affirm.\n\n A.\n\n Until Endrew F., the Supreme Court had\n\n\"declined . . . to endorse any one standard for determining\"\n\nwhether the services offered in a student's IEP amounted to a FAPE.\n\nEndrew F., 137 S. Ct. at 993. This circuit, along with several\n\nothers, said that to offer a FAPE, an IEP must be \"individually\n\n\n - 12 -\n\fdesigned\" and \"reasonably calculated to confer a meaningful\n\neducational benefit.\" D.B., 675 F.3d at 34-35 (citing D.S. v.\n\nBayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010), then citing\n\nD.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598\n\n(2d Cir. 2005), and then citing Deal v. Hamilton Cty. Bd. of Educ.,\n\n392 F.3d 840, 862 (6th Cir. 2004)). After Endrew F., this court\n\nconfirmed, in Johnson v. Boston Public Schools, 906 F.3d 182 (1st\n\nCir. 2018), that this \"meaningful educational benefit\" standard\n\nfor evaluating whether an IEP offers a FAPE \"comports\" with the\n\nstandard \"dictated by Endrew F.\"6 Id. at 194-95.\n\n C.D.'s parents say that our Johnson decision restricted\n\nits view to Endrew F.'s language about \"progress appropriate in\n\nlight of the child's circumstances,\" Endrew F., 137 S. Ct. at 1001,\n\nand that we have yet to examine language in Endrew F. about\n\n\"ambitious\" and \"challenging\" goals, id. at 1000. On the parents'\n\nreading, after Endrew F., courts must ask not only whether an IEP\n\noffers meaningful educational progress, but also, separately,\n\nwhether the IEP's objectives are ambitious and challenging.\n\n\n\n\n 6 Other circuits that use a \"meaningful benefit\" standard\nhave held the same. See L.H. v. Hamilton Cty. Dep't of Educ., 900\nF.3d 779, 792 n.5 (6th Cir. 2018); Mr. P. v. W. Hartford Bd. of\nEduc., 885 F.3d 735, 757 (2d Cir.), cert. denied sub nom. Mr. P.\nv. W. Hartford Bd. of Educ., 139 S. Ct. 322 (2018); K.D. ex rel.\nDunn v. Downingtown Area Sch. Dist., 904 F.3d 248, 254 (3d Cir.\n2018).\n\n\n - 13 -\n\f The parents misread Endrew F., which did not construe\n\nthe FAPE standard as two independent tests. That decision's core\n\nholding was that the \"merely more than de minimis\" educational\n\nbenefit standard that had been used by the appellate court to\n\nevaluate Endrew's IEPs was insufficiently \"demanding.\" Id. at\n\n1000-01; see also id. at 997 (quoting Endrew F. ex rel. Joseph F.\n\nv. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir.\n\n2015)). Endrew F. defined a FAPE -- \"an educational program\n\nreasonably calculated to enable a child to make progress\n\nappropriate in light of the child's circumstances,\" id. at\n\n1001 -- in contrast to this rejected, \"de minimis\" standard. It\n\nwas in this context that the Supreme Court employed the terms\n\n\"ambitious\" and \"challenging.\" The Court explained that, for many\n\nchildren with disabilities integrated into \"the regular\n\nclassroom,\" an \"appropriately ambitious\" goal is \"advancement from\n\ngrade to grade.\" Id. at 1000. And the Court stated that, for\n\nthose \"not fully integrated in the regular classroom,\" the\n\nparticular \"goals may differ, but every child should have the\n\nchance to meet challenging objectives.\" Id. In short, Endrew F.\n\nused terms like \"demanding,\" \"challenging,\" and \"ambitious\" to\n\ndefine \"progress appropriate in light of the child's\n\ncircumstances,\" not to announce a separate dimension of the FAPE\n\nrequirement. Id. at 1000-01; cf. R.F. v. Cecil Cty. Pub. Sch.,\n\n\n\n\n - 14 -\n\f919 F.3d 237, 252 (4th Cir. 2019) (defining adequate progress and\n\n\"challenging objectives\" under Endrew F.).\n\n Under both Endrew F. and our precedent, a court\n\nevaluating whether an IEP offers a FAPE must determine whether the\n\nIEP was reasonably calculated to confer a meaningful educational\n\nbenefit in light of the child's circumstances. See Johnson, 906\n\nF.3d at 195; cf. K.D. ex rel. Dunn v. Downingtown Area Sch. Dist.,\n\n904 F.3d 248, 256 (3d Cir. 2018) (equating meaningful progress and\n\nchallenging objectives). Depending on context, determining\n\nwhether an IEP is reasonably calculated to offer meaningful\n\nprogress may or may not require a sub-inquiry into how challenging\n\nthe plan is. Here, the district court did just what Endrew F. and\n\nJohnson require in affirming the BSEA's conclusion that the 2012-\n\n2013 and 2013-2014 IEPs offered a FAPE.7 See C.D. I, 2017 WL\n\n3122654, at *16 (describing the standard applied by the BSEA);\n\nC.D. II, 2018 WL 3510291, at *4 (affirming the BSEA's FAPE\n\nconclusion).\n\n The district court also did not err in applying that\n\nstandard to the facts in the record. The parents maintain that\n\nC.D. would not have made appropriate progress in the ACCESS\n\nProgram, but the district court reasonably concluded that the\n\n\n 7 C.D.'s parents argue that, in evaluating the 2012-2013\nand 2013-2014 IEPs, the BSEA misapplied the First Circuit's FAPE\nstandard by omitting the word \"meaningful\" from its analysis. But\nthe BSEA did not overlook that operative word.\n\n\n - 15 -\n\frecord supported the BSEA's finding that C.D., given her diagnosed\n\nintellectual disability and serious language deficits, could be\n\nexpected to make meaningful progress in the ACCESS program and\n\ngeneral education electives. See C.D. II, 2018 WL 3510291, at *3-\n\n4.\n\n B.\n\n C.D.'s parents argue next that the 2012-2013 and 2013-\n\n2014 IEPs violated the LRE mandate by proposing to place C.D. in\n\nthe ACCESS Program, which the parents view as overly restrictive.\n\nThey urge us to adopt, and argue that the district court should\n\nhave applied, the multi-step test from the Fifth Circuit's decision\n\nin Daniel R.R. to evaluate this claim.8 See 874 F.2d at 1048-50.\n\nWe reject both arguments. Instead, we affirm the district court,\n\nwhich properly relied on our decision in Roland M. in ruling that\n\nthe IEPs did not violate the LRE mandate.\n\n Courts that use the Daniel R.R. methodology evaluate\n\ncompliance with the LRE mandate in two steps, asking first \"whether\n\neducation in the regular classroom, with the use of supplementary\n\n\n\n 8 Natick and the BSEA argue that C.D.'s parents waived\ntheir argument based on Daniel R.R. by neglecting to \"set forth\n[its] multifactor test\" before the district court. But we deem\nsufficient the parents' reliance on Daniel R.R. in the district\ncourt; the parents' motions cited to and the district court quoted\nfrom Daniel R.R. See C.D. II, 2018 WL 3510291, at *3; see also\nRivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)\n(finding no waiver where \" the district court was not left . . . to\nferret out an evanescent needle from an outsized paper haystack\").\n\n\n - 16 -\n\faids and services, can be achieved satisfactorily,\" and, if the\n\nchild cannot be educated in the regular classroom, asking second\n\n\"whether the school has mainstreamed the child to the maximum\n\nextent appropriate.\" Id. at 1048. In answering the first\n\nquestion, Daniel R.R. instructs courts to consider whether the\n\ndistrict has made reasonable efforts to accommodate the child in\n\na regular classroom; the benefits, both academic and non-academic,\n\navailable to the child in a regular class compared to the benefits,\n\nboth academic and non-academic, available in a more restricted\n\nclass; and the effects of inclusion on other children in the\n\nregular classroom. Id. at 1048-49; see also Oberti by Oberti v.\n\nBd. of Educ., 995 F.2d 1204, 1217-18 (3d Cir. 1993).\n\n The parents frame their claim as presenting the\n\nfollowing question, which they say is one of first impression in\n\nthis circuit: When does a school's decision to educate a child\n\nwith disabilities in a setting other than the regular classroom\n\nviolate the IDEA's LRE mandate? Several other circuits, the\n\nparents observe, have used the Daniel R.R. test to evaluate\n\nparents' claims that their children should be mainstreamed.9 See\n\n\n\n 9 The Fourth and Eighth Circuits have applied the Sixth\nCircuit's test from Roncker v. Walter, 700 F.2d 1058 (6th Cir.\n1983), which asks \"whether the services which make . . . [an\nalternative] placement superior could be feasibly provided in a\nnon-segregated setting.\" Id. at 1063; see also DeVries v. Fairfax\nCty. Sch. Bd., 882 F.2d 876, 878-79 (4th Cir. 1989); A.W. v. Nw.\nR–1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987).\n\n\n - 17 -\n\fOberti, 995 F.2d at 1216-17; T.M., 752 F.3d at 161-62; L.B. ex\n\nrel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 976-77 (10th Cir.\n\n2004); Sacramento City Unified Sch. Dist. v. Rachel H. ex rel.\n\nHolland, 14 F.3d 1398, 1400-01 (9th Cir. 1994). The parents'\n\npremise is incorrect. There is no ground for distinguishing our\n\nprior cases, like Roland M., involving parents who sought a more\n\nrestrictive placement than the one proposed in the IEP.10 Those\n\ncases and this one in fact present the same question: Did the\n\nIEP's proposed placement violate the IDEA's LRE mandate?\n\n The text of § 1412(a)(5)(A) and prior precedent provide\n\nthe guidance we need to evaluate whether Natick complied with the\n\nLRE mandate here. In eschewing the Daniel R.R. test because \"[t]he\n\nAct itself provides enough of a framework,\" we join the Seventh\n\nCircuit. See Beth B. v. Van Clay, 282 F.3d 493, 499 (7th Cir.\n\n2002) (declining to adopt the Daniel R.R. test).\n\n C.D.'s parents argue that the Daniel R.R. test adds\n\nneeded \"complexity\" to the statute's terms. But determining an\n\nappropriate placement for a disabled child is already a complex\n\ntask. It is one that \"involves choices among educational policies\n\nand theories -- choices which courts, relatively speaking, are\n\n\n 10 See, e.g., C.G. ex rel. A.S. v. Five Town Cmty. Sch.\nDist., 513 F.3d 279, 287 (1st Cir. 2008) (holding that the district\ncourt \"supportably concluded\" that public school day placement\nrather than residential placement requested by parents was least\nrestrictive environment appropriate); Roland M., 910 F.2d at 993;\nAbrahamson v. Hershman, 701 F.2d 223, 229-30 (1st Cir. 1983).\n\n\n - 18 -\n\fpoorly equipped to make.\" Roland M., 910 F.2d at 992; see also\n\nC.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 289\n\n(1st Cir. 2008) (acknowledging \"the truism that courts should\n\nrecognize the expertise of educators with respect to the efficacy\n\nof educational programs\"). That is why the IDEA \"vests\" state and\n\nschool \"officials with responsibility for\" choosing a child's\n\nplacement. Endrew F., 137 S. Ct. at 1001. And it is why courts\n\nowe respect and deference to the expert decisions of school\n\nofficials and state administrative boards. See Lessard v. Wilton-\n\nLyndenborough Coop. Sch. Dist. (Lessard II), 592 F.3d 267, 270\n\n(1st Cir. 2010) (\"The standard of review is thus deferential to\n\nthe educational authorities, who have 'primary responsibility for\n\nformulating the education to be accorded a handicapped child, and\n\nfor choosing the educational method most suitable to the child's\n\nneeds.'\" (quoting Rowley, 458 U.S. at 207)). There is no need to\n\nadd complexity to the LRE mandate in the form of Daniel R.R.'s\n\njudicial gloss, and every reason not to do so.\n\n We proceed to review the district court's decision under\n\n§ 1412(a)(5)(A) and our cases interpreting it. Again, the IDEA\n\nmandates, at § 1412(a)(5)(A):\n\n To the maximum extent appropriate, children\n with disabilities . . . are educated with\n children who are not disabled, and special\n classes, separate schooling, or other removal\n of children with disabilities from the regular\n educational environment occurs only when the\n nature or severity of the disability of a\n\n\n - 19 -\n\f child is such that education in regular\n classes with the use of supplementary aids and\n services cannot be achieved satisfactorily.\n\n20 U.S.C. § 1412(a)(5)(A). Our cases have \"weighed\" this\n\npreference for mainstreaming \"in concert with the\" FAPE mandate.\n\nRoland M., 910 F.2d at 992-93. The two requirements \"operate in\n\ntandem to create a continuum\" of possible educational\n\nenvironments, each offering a different mix of benefits (and costs)\n\nfor a student's academic, as well as social and emotional,\n\nprogress.11 Id. For schools, complying with the two mandates\n\nmeans evaluating potential placements' \"marginal benefits\" and\n\ncosts and choosing a placement that strikes an appropriate balance\n\nbetween the restrictiveness of the placement and educational\n\nprogress. Id.; see also Amann v. Stow Sch. Sys., 982 F.2d 644,\n\n650 (1st Cir. 1992) (per curiam) (phrasing the question as whether\n\nthe \"IEP 'reasonably calculated' the balance between academic\n\nprogress and\" restrictiveness).\n\n The district court correctly identified this legal\n\nframework. Quoting Roland M., the district court explained that\n\n\"'[m]ainstreaming may not be ignored, even to fulfill substantive\n\neducational criteria.' Rather, the benefits to be gained from\n\n\n\n 11 We have recognized that educating students with\ndisabilities with their nondisabled peers can have benefits for\ndisabled students' social and communication skills. See Lenn v.\nPortland Sch. Comm., 998 F.2d 1083, 1090 & n.7 (1st Cir. 1993)\n(citing Oberti, 995 F.2d at 1216-17).\n\n\n - 20 -\n\fmainstreaming must be weighed against the educational improvements\n\nthat could be attained in a more restrictive (that is, non-\n\nmainstream) environment.\" 12 C.D. II, 2018 WL 3510291, at *3\n\n(internal citation omitted) (quoting Roland M., 910 F.2d at 993)).\n\n The parents argue, again relying on applications of\n\nDaniel R.R., that the district court erred in failing to ask\n\nwhether C.D. could have been educated in the regular classroom\n\nconsidering \"the whole range of supplemental aids and services.\"\n\nOberti, 995 F.2d at 1216. The record belies this contention. The\n\ndistrict court here verified that Natick and the BSEA had\n\nconsidered \"the nature and severity\" of C.D.'s disability as well\n\nas the impact of \"supplementary aids and services.\" 20 U.S.C.\n\n§ 1412(a)(5)(A). It noted that the BSEA and Natick had both\n\nexamined three potential placements: the regular classroom,\n\nreplacement classes, and the ACCESS Program. C.D. II, 2018 WL\n\n3510291, at *3. Then the district court found that evidence\n\nsupported the BSEA's and Natick's conclusion that the ACCESS\n\nProgram was appropriate because of C.D.'s particular\n\ndisability -- an \"intellectual disability in conjunction with\n\n\n\n\n 12 The parents argue that the district court \"erred where\nit did not even articulate the need to balance non-academic\nbenefits against the putative academic advantages of a\nsubstantially separate classroom.\" But the district court\nproperly understood the balancing inquiry outlined in Roland M.\n\n\n - 21 -\n\fweaknesses in receptive and expressive language.\"13 Id. (internal\n\nquotation marks omitted).\n\n We see no error in the district court's appropriately\n\ndeferential analysis. As we have emphasized, the IDEA vests state\n\nand local educational officials, not federal courts, with the\n\nprimary responsibility to make placement decisions consistent with\n\n§ 1412(a)(5)(A).\n\n C.\n\n C.D.'s parents next argue that the district court\n\nignored the plain language of the IDEA in affirming the BSEA's\n\nruling that the IEPs complied with the statute's transition\n\nprovision. Not so.\n\n We have previously held that the IDEA \"does not require\n\na stand-alone transition plan.\" Lessard v. Wilton Lyndeborough\n\nCoop. Sch. Dist. (Lessard I), 518 F.3d 18, 24 (1st Cir. 2008).\n\nNor does the statute require that the underlying transition\n\nassessments take a particular form. See 20 U.S.C.\n\n§ 1414(d)(1)(A)(i)(VIII). Indeed, there is no restriction on the\n\nmeans of gathering information about a student's interests or\n\nabilities that may be relevant to the development of postsecondary\n\ntransition goals. See, e.g., Mass. Dep't of Elementary &\n\n\n 13 C.D.'s parents' dispute of a related factual finding\nmade by the BSEA in its initial ruling on the LRE issue is\nmisplaced. The district court ultimately reviewed the facts as\nclarified by the BSEA.\n\n\n - 22 -\n\fSecondary Educ., Transitional Assessment in the Secondary\n\nTransition Planning Process, Technical Advisory SPED 2014-4, at 1-\n\n3 (Apr. 9, 2014) (declining to adopt 'a restrictive approach which\n\nmight seem to imply the required use of highly specialized formal\n\nassessments for each student\").\n\n The district court did not err in articulating or\n\napplying these transition requirements. It discussed the\n\nstatute's assessment and planning dimensions, it cited repeatedly\n\nto Massachusetts' guidance implementing the federal provision, and\n\nit relied on case law correctly applying the transition\n\nrequirement. See C.D. I, 2017 WL 3122654, at *19, *21 (citing\n\nSebastian M. v. King Philip Reg'l Sch. Dist., 774 F. Supp. 2d 393,\n\n407 (D. Mass. 2011), aff'd, 685 F.3d 79 (1st Cir. 2012)).\n\n The district court then reasonably applied those rules\n\nin affirming the BSEA's ruling. The IEPs stated grade-appropriate\n\ngoals and services designed to prepare C.D. for the post-secondary\n\ntransition.14 See Lessard I, 518 F.3d at 25; see also, e.g.,\n\n\n\n 14 Specifically, C.D.'s 2012-2013 IEP stated that C.D.'s\nparents hoped she would receive a high school diploma and\nvocational training. The IEP outlined educational goals and\nservices that would have helped C.D. make progress toward that\ndiploma, and it also provided for vocational services from the\nschool's learning center. The 2013-2014 IEP was similar, and it\nadded opportunities to meet with the school's guidance counselor\nand career specialist to discuss post-secondary plans. The final\n2014-2015 IEP further proposed educational and vocational services\nand set out specific goals related to job readiness, job coaching,\nand independent living.\n\n\n - 23 -\n\fRodrigues v. Fort Lee Bd. of Educ., 458 F. App'x 124, 128 (3d Cir.\n\n2011) (finding adequate an IEP that listed a transition goal and\n\nnoted available services). And the 2012-2013 and 2013-2014 plans\n\nreflected and were developed based on a transition-specific\n\ndiscussion at the 2012-2013 IEP meeting and on extensive\n\neducational and psychological evaluations done of C.D. and\n\nprovided to Natick as part of the IEP development process. The\n\nfinal 2014-2015 IEP reflected and was based on assessments like\n\nthese as well as a formal transition assessment. All three IEPs\n\ncontained \"appropriate measurable postsecondary goals based upon\n\nage appropriate assessments.\" 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa).\n\n IV.\n\n Affirmed.\n\n\n\n\n - 24 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: C.D., BY AND THROUGH Her Parents and Next Friends, M.D. and P.D.; M.D.; P.D., Plaintiffs, Appellants, v. NATICK PUBLIC SCHOOL DISTRICT; Bureau of Special Education Appeals, Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1794\\n\\n C.D., by and through her Parents and Next Friends, M.D. and\\n P.D.; M.D.; P.D.,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n NATICK PUBLIC SCHOOL DISTRICT; BUREAU OF SPECIAL EDUCATION\\n APPEALS,\\n\\n Defendants, Appellees.\\n\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. F. Dennis Saylor, IV, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Lynch, and Kayatta,\\n Circuit Judges.\\n\\n\\n Benjamin J. Wish, with whom Todd & Weld, LLP, Laurie R.\\nMartucci, and Martucci Law Associates were on brief, for\\nappellants.\\n Selene Almazan-Altobelli and Ellen Saideman on brief for\\nCouncil of Parent Attorneys and Advocates, Inc., amicus curiae.\\n Ira A. Burnim, Lewis Bossing, Elizabeth B. McCallum, Paul E.\\nPoirot, William T. DeVinney, and Baker Hostetler, LLP on brief for\\nthe Judge David L. Bazelon Center for Mental Health Law,\\nAssociation of University Centers on Disabilities, Disability Law\\nCenter, National Center for Learning Disabilities, National Center\\nfor Youth Law, National Disability Rights Network, and National\\nDown Syndrome Congress, amici curiae.\\n Felicia S. Vasudevan, with whom Murphy, Hesse, Toomey &\\n\\fLehane, LLP was on brief, for Natick Public School District.\\n Anna Rachel Dray-Siegel, Assistant Attorney General, with\\nwhom Maura Healey, Attorney General of Massachusetts, was on brief,\\nfor Bureau of Special Education Appeals.\\n Michael J. Long and Long & DiPietro, LLP on brief for the\\nMassachusetts Association of School Superintendents, amicus\\ncuriae.\\n Francisco M. Negrón, Jr., Cristine M.D. Goldman, Colleen\\nShea, Colby Brunt, and Stoneman, Chandler & Miller, LLP on brief\\nfor National School Boards Association and Massachusetts\\nAssociation of School Committees, amici curiae.\\n\\n\\n May 22, 2019\\n\\f LYNCH, Circuit Judge. The Individuals with Disabilities\\n\\nEducation Act (IDEA) requires that students with certain\\n\\ndisabilities be provided a \\\"[f]ree appropriate public education\\\"\\n\\n(FAPE) in the \\\"[l]east restrictive environment\\\" (LRE) appropriate\\n\\nfor each student. 20 U.S.C. § 1412(a)(1), (5). Under the IDEA\\n\\nand Massachusetts law, the individualized education programs\\n\\n(IEPs) of certain disabled students must also contain\\n\\npostsecondary transition goals and services based on age-\\n\\nappropriate assessments. Id. § 1414(d)(1)(A)(i)(VIII); Mass.\\n\\nGen. Laws ch. 71B, § 2.\\n\\n Appellants are C.D., a resident of Natick,\\n\\nMassachusetts, who qualified as a child with a disability under\\n\\nthe IDEA, and her parents. They challenge this circuit's prior\\n\\ninterpretations of these IDEA requirements as incomplete or as\\n\\ninconsistent with the IDEA and current Supreme Court case law.\\n\\nThe parents seek reimbursement for at least three years of C.D.'s\\n\\neducation in a specialized private school. Rejecting these\\n\\nchallenges, we affirm the district court, which upheld a decision\\n\\nof the Massachusetts Bureau of Special Education Appeals (BSEA)\\n\\nruling that the Natick Public School District (Natick) had complied\\n\\nwith the FAPE, LRE, and transition requirements in proposed IEPs\\n\\nfor C.D. See C.D. v. Natick Pub. Sch. Dist. (C.D. II), No. 15-\\n\\n13617-FDS, 2018 WL 3510291, at *1 (D. Mass. July 20, 2018); C.D.\\n\\n\\n\\n\\n - 3 -\\n\\fv. Natick Pub. Sch. Dist. (C.D. I), No. 15-13617-FDS, 2017 WL\\n\\n3122654, at *1 (D. Mass. July 21, 2017).\\n\\n I.\\n\\n The IDEA offers states federal funds for the education\\n\\nof children with disabilities in exchange for the states'\\n\\ncommitments to comply with the IDEA's directives, including its\\n\\nFAPE and LRE requirements. See Arlington Cent. Sch. Dist. Bd. of\\n\\nEduc. v. Murphy, 548 U.S. 291, 295 (2006).\\n\\n A FAPE \\\"comprises 'special education and related\\n\\nservices' -- both 'instruction' tailored to meet a child's 'unique\\n\\nneeds' and sufficient 'supportive services' to permit the child to\\n\\nbenefit from that instruction.\\\" Fry v. Napoleon Cmty. Sch., 137\\n\\nS. Ct. 743, 748–49 (2017) (quoting 20 U.S.C. § 1401(9), (26),\\n\\n(29)). \\\"The primary vehicle for delivery of a FAPE is an IEP.\\\"\\n\\nD.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.\\n\\n2012) (internal quotation marks omitted). IEPs are \\\"comprehensive\\n\\nplan[s]\\\" that are developed by the child's \\\"IEP Team (which\\n\\nincludes teachers, school officials, and the child's parents)\\\" and\\n\\nthat \\\"must be drafted in compliance with a detailed set of\\n\\nprocedures.\\\" Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.\\n\\nCt. 988, 994 (2017) (internal quotation marks omitted). Under the\\n\\nSupreme Court's recent decision in Endrew F. v. Douglas County\\n\\nSchool District RE-1, 137 S. Ct. 988 (2017), the services offered\\n\\nin an IEP amount to a FAPE if they are \\\"reasonably calculated to\\n\\n\\n - 4 -\\n\\fenable a child to make progress appropriate in light of the child's\\n\\ncircumstances.\\\" Id. at 1001.\\n\\n The IDEA also requires states receiving federal funds to\\n\\neducate disabled children in the \\\"[l]east restrictive environment\\\"\\n\\nappropriate for each child. 20 U.S.C. § 1412(a)(5). The statute\\n\\nmandates at § 1412(a)(5)(A):\\n\\n To the maximum extent appropriate, children\\n with disabilities . . . are educated with\\n children who are not disabled, and special\\n classes, separate schooling, or other removal\\n of children with disabilities from the regular\\n educational environment occurs only when the\\n nature or severity of the disability of a\\n child is such that education in regular\\n classes with the use of supplementary aids and\\n services cannot be achieved satisfactorily.\\n\\nId. The Supreme Court has characterized this LRE mandate as\\n\\nembodying a \\\"preference\\\" for \\\"mainstreaming\\\" students with\\n\\ndisabilities in \\\"the regular classrooms of a public school system.\\\"\\n\\nBd. of Educ. v. Rowley, 458 U.S. 176, 202-03 (1982); see also\\n\\nEndrew F., 137 S. Ct. at 999 (\\\"[T]he IDEA requires that children\\n\\nwith disabilities receive education in the regular classroom\\n\\n'whenever possible'\\\" (quoting Rowley, 458 U.S. at 202)). But the\\n\\nIDEA's preference for mainstreaming \\\"is not absolute.\\\" T.M. ex\\n\\nrel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 162 (2d Cir.\\n\\n2014); see also Rowley, 458 U.S. at 197 n.21 (\\\"The Act's use of\\n\\nthe word 'appropriate' . . . reflect[s] Congress' recognition that\\n\\nsome settings simply are not suitable environments for . . . some\\n\\n\\n\\n\\n - 5 -\\n\\fhandicapped children.\\\"). Instead, as we explained in Roland M.\\n\\nv. Concord School Committee, 910 F.2d 983 (1st Cir. 1990), \\\"the\\n\\ndesirability of mainstreaming must be weighed in concert with the\\n\\nAct's mandate for educational improvement.\\\"1 Id. at 993.\\n\\n The final IDEA requirement at issue here is the\\n\\ninstruction at § 1414(d)(1)(A)(i)(VIII) that certain students'\\n\\nIEPs \\\"include[] . . . appropriate measurable postsecondary goals\\n\\nbased upon age appropriate transition assessments related to\\n\\ntraining, education, employment, and . . . independent living\\n\\nskills\\\" along with \\\"the transition services (including courses of\\n\\nstudy) needed to assist the child in reaching those goals.\\\" 20\\n\\nU.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb). Massachusetts has made\\n\\nthese transition requirements applicable starting at age fourteen.\\n\\nSee Mass. Gen. Laws ch. 71B, § 2; see also 20 U.S.C.\\n\\n§ 1414(d)(1)(A)(i)(VIII) (making this requirement applicable\\n\\n\\\"beginning not later than the first IEP to be in effect when the\\n\\nchild is 16\\\"). Because C.D. was fourteen or older when the IEPs\\n\\nat issue were proposed, these requirements applied.\\n\\n\\n\\n\\n 1 Roland M. interpreted the IDEA's predecessor statute,\\nsee 910 F.2d at 987, but the text of the provision at issue has\\nnot changed, compare Education for All Handicapped Children Act of\\n1975, Pub. L. No. 94-142 § 612(5), 89 Stat. 733, 781 (1975), with\\n20 U.S.C. § 1412(a)(5)(A).\\n\\n\\n - 6 -\\n\\f II.\\n\\n C.D. has borderline intellectual functioning and\\n\\nsignificant deficits in language ability. She attended public\\n\\nschool in Natick through fifth grade. For middle school, she\\n\\nattended McAuliffe Regional Charter Public School in Framingham,\\n\\nMassachusetts, where she took all of her classes except math in a\\n\\nregular classroom setting. To assist C.D., two private tutors\\n\\nhired by C.D.'s parents attended C.D.'s middle school classes with\\n\\nher.\\n\\n The summer before C.D. entered high school, her parents\\n\\nworked with Natick to develop an IEP for C.D.'s ninth grade year\\n\\nat Natick High School. C.D.'s parents wanted C.D. to continue her\\n\\neducation in a regular classroom setting, with the help of the\\n\\nsame private tutors. School officials explained that only Natick\\n\\nemployees were allowed to teach or tutor students in Natick's\\n\\nclassrooms.\\n\\n Natick was concerned that larger class sizes and more\\n\\nadvanced content in high school would make it difficult for C.D.\\n\\nto access the general education curriculum. It considered placing\\n\\nC.D. in replacement classes in which a modified general education\\n\\ncurriculum is taught by a special education teacher. Ultimately,\\n\\nNatick, in its proposed IEP, chose a third option.\\n\\n The school presented C.D.'s parents with a proposed\\n\\nninth grade IEP, for the 2012-2013 school year, that placed C.D.\\n\\n\\n - 7 -\\n\\fin regular classrooms for her elective courses but in a setting\\n\\ncalled the ACCESS Program for her academic courses. The ACCESS\\n\\nProgram is a self-contained special education program located at\\n\\nNatick High School and designed for students who, like C.D., have\\n\\ncognitive and communication deficits. ACCESS offers a\\n\\nsignificantly modified curriculum, and its students typically earn\\n\\ncertificates rather than high school diplomas.\\n\\n C.D.'s parents rejected the IEP, saying that the ACCESS\\n\\nProgram was an overly \\\"restricted environment\\\" and that C.D.'s\\n\\nplacement there would \\\"hinder\\\" her academic and social growth.\\n\\nThey enrolled C.D. at Learning Prep School, a private school that\\n\\nspecializes in educating students with disabilities.\\n\\n The summer before C.D. was to enter tenth grade, Natick\\n\\npresented to C.D.'s parents an IEP for the 2013-2014 school year\\n\\nthat again placed C.D. in the ACCESS Program for her academic\\n\\nclasses. C.D.'s parents again rejected the IEP, giving the same\\n\\nreasons, and enrolled C.D. at Learning Prep.\\n\\n Before the next school year, the IEP Team reconvened,\\n\\nthis time with the benefit of a fresh set of assessments of C.D.\\n\\nBased on these assessments and on reports of C.D.'s progress at\\n\\nLearning Prep, Natick proposed a new IEP for the 2014-2015 school\\n\\nyear that placed C.D. in a mix of ACCESS classes, replacement\\n\\nclasses, and general education classes. C.D.'s parents rejected\\n\\nthis IEP for two reasons. As they saw it, the proposed schedule\\n\\n\\n - 8 -\\n\\fleft inadequate time for speech and language services. In\\n\\naddition, Natick had not yet conducted a formal postsecondary\\n\\ntransition assessment. As to C.D.'s postsecondary transition, the\\n\\n2012-2013, 2013-2014, and initial 2014-2015 IEPs had stated the\\n\\nparents' goal that C.D. graduate from high school and had provided\\n\\ntransition and vocational services from the school's learning\\n\\ncenter.\\n\\n Natick then performed a formal transition assessment and\\n\\npresented a revised 2014-2015 IEP. This final IEP proposed the\\n\\nsame mix of classes, but extended C.D.'s school day to allow for\\n\\nspeech and language therapy as well as career preparation services.\\n\\nC.D.'s parents rejected this IEP, and C.D. attended Learning Prep\\n\\nfor the 2014-2015 school year.\\n\\n In 2014, C.D.'s parents filed a complaint with the BSEA\\n\\nseeking reimbursement for C.D.'s tuition at Learning Prep. To\\n\\nqualify for reimbursement, the parents had to show that Natick's\\n\\nIEPs for 2012-2013, 2013-2014, and 2014-2015 \\\"had not made a free\\n\\nappropriate public education available.\\\" 2 See 20 U.S.C.\\n\\n§ 1412(a)(10)(C)(ii). After a hearing in May 2015, a BSEA Hearing\\n\\n\\n\\n 2 The transition planning and transition assessment\\nrequirements are procedural. Only certain procedural flaws, such\\nas those that result in the denial of a FAPE or \\\"a deprivation of\\neducational benefits,\\\" are actionable under the IDEA. 20 U.S.C.\\n§ 1415(f)(3)(E)(ii); see also, e.g., R.E. v. N.Y.C. Dep't of Educ.,\\n694 F.3d 167, 195 (2d Cir. 2012) (applying this harmless error\\nprinciple to a claimed violation of the transition requirements).\\n\\n\\n - 9 -\\n\\fOfficer denied the parents' request for reimbursement. The\\n\\nHearing Officer concluded that the IEPs were \\\"reasonably\\n\\ncalculated to provide [C.D.] with a free appropriate public\\n\\neducation in the least restrictive environment.\\\" And the Hearing\\n\\nOfficer found that the facts and testimony presented did not\\n\\nsupport the parents' arguments that the transition assessments and\\n\\nplans were inadequate.3\\n\\n C.D.'s parents sought review of the BSEA's decision in\\n\\nfederal district court. The district court denied the parents'\\n\\nmotion for summary judgment and their supplemental motion for\\n\\nsummary judgment. See C.D. I, 2017 WL 3122654, at *26; C.D. II,\\n\\n2018 WL 3510291, at *4. Giving \\\"due weight\\\" to the decision of\\n\\nthe BSEA, C.D. I, 2017 WL 3122654, at *15, the district court made\\n\\nthree relevant rulings. First, because Endrew F. had been decided\\n\\nwhile the parents' motion for summary judgment was pending, the\\n\\ndistrict court verified that the Hearing Officer had applied a\\n\\nFAPE standard consistent with Endrew F. 4 Id. at *16 (\\\"[T]he\\n\\nstandard articulated in Endrew F. is not materially different from\\n\\nthe standard set forth in\\\" the First Circuit's prior cases and\\n\\n\\\"applied by the hearing officer.\\\"). Second, the district court\\n\\n\\n 3 The Hearing Officer also rejected other arguments not\\npresented on appeal.\\n 4 The district court first remanded in part to the BSEA\\nfor the Hearing Officer to confirm that she had applied a standard\\nconsistent with Endrew F.\\n\\n\\n - 10 -\\n\\ffound it \\\"unclear\\\" whether the BSEA's decision had followed the\\n\\nFirst Circuit's prior cases on the LRE mandate. Id. at *19. And\\n\\nso the district court remanded to the BSEA to determine whether\\n\\nthe 2012-2013 and 2013-2014 IEPs, which proposed to place C.D. in\\n\\nthe ACCESS Program for her academic courses, had provided a FAPE\\n\\nin the LRE. After the BSEA responded with a clarification order,\\n\\nthe district court concluded that \\\"based on the preponderance of\\n\\nthe evidence, the BSEA hearing officer appropriately found that\\n\\nthe district balanced the benefits of mainstreaming against the\\n\\nrestrictions associated with the [ACCESS] classes, and that\\n\\nthe . . . IEPs were reasonably calculated to provide a FAPE in the\\n\\nleast restrictive environment possible.\\\" C.D. II, 2018 WL\\n\\n3510291, at *4. Third, the district court agreed with the BSEA\\n\\nthat the 2012-2013, 2013-2014, and the final 2014-2015 5 IEPs\\n\\ncomplied with the IDEA's transition planning and assessment\\n\\nrequirements. C.D. I, 2017 WL 3122654, at *19, *21.\\n\\n III.\\n\\n C.D.'s parents now argue that the district court applied\\n\\nthe wrong legal standards. They say first that Endrew F. defined\\n\\n\\\"progress appropriate\\\" as \\\"appropriately ambitious\\\" and\\n\\n\\\"challenging\\\" so that the district court was required to ask, in\\n\\n\\n\\n 5 The district court held that any challenges to the\\ninitial 2014-2015 IEP were mooted by that IEP's replacement with\\nthe final 2014-2015 IEP. C.D. I, 2017 WL 3122654, at *21.\\n\\n\\n - 11 -\\n\\fevaluating whether a FAPE was offered, whether the IEPs contained\\n\\nsufficiently \\\"challenging objectives.\\\" Endrew F., 137 S. Ct. at\\n\\n1000. Next, the parents urge us to adopt, and contend that the\\n\\ndistrict court should have applied, a multi-part test from Daniel\\n\\nR.R. v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989),\\n\\nto evaluate whether the IEPs placed C.D. in an overly restrictive\\n\\nenvironment. Finally, C.D.'s parents argue that the district\\n\\ncourt ignored the plain language of the IDEA's transition planning\\n\\nand assessment requirements.\\n\\n Our review of the district court on these legal issues\\n\\nis de novo. See Johnson v. Bos. Pub. Sch., 906 F.3d 182, 191 (1st\\n\\nCir. 2018). We hold that the district court properly applied this\\n\\ncircuit's standards and that those standards are consistent with\\n\\nEndrew F. and with the IDEA. The parents also raise alternative\\n\\narguments that the district court erred in applying law to fact,\\n\\nand we review these fact-dominated rulings deferentially. Id.\\n\\n(quoting Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st\\n\\nCir. 2016)). Finding no errors, we affirm.\\n\\n A.\\n\\n Until Endrew F., the Supreme Court had\\n\\n\\\"declined . . . to endorse any one standard for determining\\\"\\n\\nwhether the services offered in a student's IEP amounted to a FAPE.\\n\\nEndrew F., 137 S. Ct. at 993. This circuit, along with several\\n\\nothers, said that to offer a FAPE, an IEP must be \\\"individually\\n\\n\\n - 12 -\\n\\fdesigned\\\" and \\\"reasonably calculated to confer a meaningful\\n\\neducational benefit.\\\" D.B., 675 F.3d at 34-35 (citing D.S. v.\\n\\nBayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010), then citing\\n\\nD.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598\\n\\n(2d Cir. 2005), and then citing Deal v. Hamilton Cty. Bd. of Educ.,\\n\\n392 F.3d 840, 862 (6th Cir. 2004)). After Endrew F., this court\\n\\nconfirmed, in Johnson v. Boston Public Schools, 906 F.3d 182 (1st\\n\\nCir. 2018), that this \\\"meaningful educational benefit\\\" standard\\n\\nfor evaluating whether an IEP offers a FAPE \\\"comports\\\" with the\\n\\nstandard \\\"dictated by Endrew F.\\\"6 Id. at 194-95.\\n\\n C.D.'s parents say that our Johnson decision restricted\\n\\nits view to Endrew F.'s language about \\\"progress appropriate in\\n\\nlight of the child's circumstances,\\\" Endrew F., 137 S. Ct. at 1001,\\n\\nand that we have yet to examine language in Endrew F. about\\n\\n\\\"ambitious\\\" and \\\"challenging\\\" goals, id. at 1000. On the parents'\\n\\nreading, after Endrew F., courts must ask not only whether an IEP\\n\\noffers meaningful educational progress, but also, separately,\\n\\nwhether the IEP's objectives are ambitious and challenging.\\n\\n\\n\\n\\n 6 Other circuits that use a \\\"meaningful benefit\\\" standard\\nhave held the same. See L.H. v. Hamilton Cty. Dep't of Educ., 900\\nF.3d 779, 792 n.5 (6th Cir. 2018); Mr. P. v. W. Hartford Bd. of\\nEduc., 885 F.3d 735, 757 (2d Cir.), cert. denied sub nom. Mr. P.\\nv. W. Hartford Bd. of Educ., 139 S. Ct. 322 (2018); K.D. ex rel.\\nDunn v. Downingtown Area Sch. Dist., 904 F.3d 248, 254 (3d Cir.\\n2018).\\n\\n\\n - 13 -\\n\\f The parents misread Endrew F., which did not construe\\n\\nthe FAPE standard as two independent tests. That decision's core\\n\\nholding was that the \\\"merely more than de minimis\\\" educational\\n\\nbenefit standard that had been used by the appellate court to\\n\\nevaluate Endrew's IEPs was insufficiently \\\"demanding.\\\" Id. at\\n\\n1000-01; see also id. at 997 (quoting Endrew F. ex rel. Joseph F.\\n\\nv. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir.\\n\\n2015)). Endrew F. defined a FAPE -- \\\"an educational program\\n\\nreasonably calculated to enable a child to make progress\\n\\nappropriate in light of the child's circumstances,\\\" id. at\\n\\n1001 -- in contrast to this rejected, \\\"de minimis\\\" standard. It\\n\\nwas in this context that the Supreme Court employed the terms\\n\\n\\\"ambitious\\\" and \\\"challenging.\\\" The Court explained that, for many\\n\\nchildren with disabilities integrated into \\\"the regular\\n\\nclassroom,\\\" an \\\"appropriately ambitious\\\" goal is \\\"advancement from\\n\\ngrade to grade.\\\" Id. at 1000. And the Court stated that, for\\n\\nthose \\\"not fully integrated in the regular classroom,\\\" the\\n\\nparticular \\\"goals may differ, but every child should have the\\n\\nchance to meet challenging objectives.\\\" Id. In short, Endrew F.\\n\\nused terms like \\\"demanding,\\\" \\\"challenging,\\\" and \\\"ambitious\\\" to\\n\\ndefine \\\"progress appropriate in light of the child's\\n\\ncircumstances,\\\" not to announce a separate dimension of the FAPE\\n\\nrequirement. Id. at 1000-01; cf. R.F. v. Cecil Cty. Pub. Sch.,\\n\\n\\n\\n\\n - 14 -\\n\\f919 F.3d 237, 252 (4th Cir. 2019) (defining adequate progress and\\n\\n\\\"challenging objectives\\\" under Endrew F.).\\n\\n Under both Endrew F. and our precedent, a court\\n\\nevaluating whether an IEP offers a FAPE must determine whether the\\n\\nIEP was reasonably calculated to confer a meaningful educational\\n\\nbenefit in light of the child's circumstances. See Johnson, 906\\n\\nF.3d at 195; cf. K.D. ex rel. Dunn v. Downingtown Area Sch. Dist.,\\n\\n904 F.3d 248, 256 (3d Cir. 2018) (equating meaningful progress and\\n\\nchallenging objectives). Depending on context, determining\\n\\nwhether an IEP is reasonably calculated to offer meaningful\\n\\nprogress may or may not require a sub-inquiry into how challenging\\n\\nthe plan is. Here, the district court did just what Endrew F. and\\n\\nJohnson require in affirming the BSEA's conclusion that the 2012-\\n\\n2013 and 2013-2014 IEPs offered a FAPE.7 See C.D. I, 2017 WL\\n\\n3122654, at *16 (describing the standard applied by the BSEA);\\n\\nC.D. II, 2018 WL 3510291, at *4 (affirming the BSEA's FAPE\\n\\nconclusion).\\n\\n The district court also did not err in applying that\\n\\nstandard to the facts in the record. The parents maintain that\\n\\nC.D. would not have made appropriate progress in the ACCESS\\n\\nProgram, but the district court reasonably concluded that the\\n\\n\\n 7 C.D.'s parents argue that, in evaluating the 2012-2013\\nand 2013-2014 IEPs, the BSEA misapplied the First Circuit's FAPE\\nstandard by omitting the word \\\"meaningful\\\" from its analysis. But\\nthe BSEA did not overlook that operative word.\\n\\n\\n - 15 -\\n\\frecord supported the BSEA's finding that C.D., given her diagnosed\\n\\nintellectual disability and serious language deficits, could be\\n\\nexpected to make meaningful progress in the ACCESS program and\\n\\ngeneral education electives. See C.D. II, 2018 WL 3510291, at *3-\\n\\n4.\\n\\n B.\\n\\n C.D.'s parents argue next that the 2012-2013 and 2013-\\n\\n2014 IEPs violated the LRE mandate by proposing to place C.D. in\\n\\nthe ACCESS Program, which the parents view as overly restrictive.\\n\\nThey urge us to adopt, and argue that the district court should\\n\\nhave applied, the multi-step test from the Fifth Circuit's decision\\n\\nin Daniel R.R. to evaluate this claim.8 See 874 F.2d at 1048-50.\\n\\nWe reject both arguments. Instead, we affirm the district court,\\n\\nwhich properly relied on our decision in Roland M. in ruling that\\n\\nthe IEPs did not violate the LRE mandate.\\n\\n Courts that use the Daniel R.R. methodology evaluate\\n\\ncompliance with the LRE mandate in two steps, asking first \\\"whether\\n\\neducation in the regular classroom, with the use of supplementary\\n\\n\\n\\n 8 Natick and the BSEA argue that C.D.'s parents waived\\ntheir argument based on Daniel R.R. by neglecting to \\\"set forth\\n[its] multifactor test\\\" before the district court. But we deem\\nsufficient the parents' reliance on Daniel R.R. in the district\\ncourt; the parents' motions cited to and the district court quoted\\nfrom Daniel R.R. See C.D. II, 2018 WL 3510291, at *3; see also\\nRivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)\\n(finding no waiver where \\\" the district court was not left . . . to\\nferret out an evanescent needle from an outsized paper haystack\\\").\\n\\n\\n - 16 -\\n\\faids and services, can be achieved satisfactorily,\\\" and, if the\\n\\nchild cannot be educated in the regular classroom, asking second\\n\\n\\\"whether the school has mainstreamed the child to the maximum\\n\\nextent appropriate.\\\" Id. at 1048. In answering the first\\n\\nquestion, Daniel R.R. instructs courts to consider whether the\\n\\ndistrict has made reasonable efforts to accommodate the child in\\n\\na regular classroom; the benefits, both academic and non-academic,\\n\\navailable to the child in a regular class compared to the benefits,\\n\\nboth academic and non-academic, available in a more restricted\\n\\nclass; and the effects of inclusion on other children in the\\n\\nregular classroom. Id. at 1048-49; see also Oberti by Oberti v.\\n\\nBd. of Educ., 995 F.2d 1204, 1217-18 (3d Cir. 1993).\\n\\n The parents frame their claim as presenting the\\n\\nfollowing question, which they say is one of first impression in\\n\\nthis circuit: When does a school's decision to educate a child\\n\\nwith disabilities in a setting other than the regular classroom\\n\\nviolate the IDEA's LRE mandate? Several other circuits, the\\n\\nparents observe, have used the Daniel R.R. test to evaluate\\n\\nparents' claims that their children should be mainstreamed.9 See\\n\\n\\n\\n 9 The Fourth and Eighth Circuits have applied the Sixth\\nCircuit's test from Roncker v. Walter, 700 F.2d 1058 (6th Cir.\\n1983), which asks \\\"whether the services which make . . . [an\\nalternative] placement superior could be feasibly provided in a\\nnon-segregated setting.\\\" Id. at 1063; see also DeVries v. Fairfax\\nCty. Sch. Bd., 882 F.2d 876, 878-79 (4th Cir. 1989); A.W. v. Nw.\\nR–1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987).\\n\\n\\n - 17 -\\n\\fOberti, 995 F.2d at 1216-17; T.M., 752 F.3d at 161-62; L.B. ex\\n\\nrel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 976-77 (10th Cir.\\n\\n2004); Sacramento City Unified Sch. Dist. v. Rachel H. ex rel.\\n\\nHolland, 14 F.3d 1398, 1400-01 (9th Cir. 1994). The parents'\\n\\npremise is incorrect. There is no ground for distinguishing our\\n\\nprior cases, like Roland M., involving parents who sought a more\\n\\nrestrictive placement than the one proposed in the IEP.10 Those\\n\\ncases and this one in fact present the same question: Did the\\n\\nIEP's proposed placement violate the IDEA's LRE mandate?\\n\\n The text of § 1412(a)(5)(A) and prior precedent provide\\n\\nthe guidance we need to evaluate whether Natick complied with the\\n\\nLRE mandate here. In eschewing the Daniel R.R. test because \\\"[t]he\\n\\nAct itself provides enough of a framework,\\\" we join the Seventh\\n\\nCircuit. See Beth B. v. Van Clay, 282 F.3d 493, 499 (7th Cir.\\n\\n2002) (declining to adopt the Daniel R.R. test).\\n\\n C.D.'s parents argue that the Daniel R.R. test adds\\n\\nneeded \\\"complexity\\\" to the statute's terms. But determining an\\n\\nappropriate placement for a disabled child is already a complex\\n\\ntask. It is one that \\\"involves choices among educational policies\\n\\nand theories -- choices which courts, relatively speaking, are\\n\\n\\n 10 See, e.g., C.G. ex rel. A.S. v. Five Town Cmty. Sch.\\nDist., 513 F.3d 279, 287 (1st Cir. 2008) (holding that the district\\ncourt \\\"supportably concluded\\\" that public school day placement\\nrather than residential placement requested by parents was least\\nrestrictive environment appropriate); Roland M., 910 F.2d at 993;\\nAbrahamson v. Hershman, 701 F.2d 223, 229-30 (1st Cir. 1983).\\n\\n\\n - 18 -\\n\\fpoorly equipped to make.\\\" Roland M., 910 F.2d at 992; see also\\n\\nC.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 289\\n\\n(1st Cir. 2008) (acknowledging \\\"the truism that courts should\\n\\nrecognize the expertise of educators with respect to the efficacy\\n\\nof educational programs\\\"). That is why the IDEA \\\"vests\\\" state and\\n\\nschool \\\"officials with responsibility for\\\" choosing a child's\\n\\nplacement. Endrew F., 137 S. Ct. at 1001. And it is why courts\\n\\nowe respect and deference to the expert decisions of school\\n\\nofficials and state administrative boards. See Lessard v. Wilton-\\n\\nLyndenborough Coop. Sch. Dist. (Lessard II), 592 F.3d 267, 270\\n\\n(1st Cir. 2010) (\\\"The standard of review is thus deferential to\\n\\nthe educational authorities, who have 'primary responsibility for\\n\\nformulating the education to be accorded a handicapped child, and\\n\\nfor choosing the educational method most suitable to the child's\\n\\nneeds.'\\\" (quoting Rowley, 458 U.S. at 207)). There is no need to\\n\\nadd complexity to the LRE mandate in the form of Daniel R.R.'s\\n\\njudicial gloss, and every reason not to do so.\\n\\n We proceed to review the district court's decision under\\n\\n§ 1412(a)(5)(A) and our cases interpreting it. Again, the IDEA\\n\\nmandates, at § 1412(a)(5)(A):\\n\\n To the maximum extent appropriate, children\\n with disabilities . . . are educated with\\n children who are not disabled, and special\\n classes, separate schooling, or other removal\\n of children with disabilities from the regular\\n educational environment occurs only when the\\n nature or severity of the disability of a\\n\\n\\n - 19 -\\n\\f child is such that education in regular\\n classes with the use of supplementary aids and\\n services cannot be achieved satisfactorily.\\n\\n20 U.S.C. § 1412(a)(5)(A). Our cases have \\\"weighed\\\" this\\n\\npreference for mainstreaming \\\"in concert with the\\\" FAPE mandate.\\n\\nRoland M., 910 F.2d at 992-93. The two requirements \\\"operate in\\n\\ntandem to create a continuum\\\" of possible educational\\n\\nenvironments, each offering a different mix of benefits (and costs)\\n\\nfor a student's academic, as well as social and emotional,\\n\\nprogress.11 Id. For schools, complying with the two mandates\\n\\nmeans evaluating potential placements' \\\"marginal benefits\\\" and\\n\\ncosts and choosing a placement that strikes an appropriate balance\\n\\nbetween the restrictiveness of the placement and educational\\n\\nprogress. Id.; see also Amann v. Stow Sch. Sys., 982 F.2d 644,\\n\\n650 (1st Cir. 1992) (per curiam) (phrasing the question as whether\\n\\nthe \\\"IEP 'reasonably calculated' the balance between academic\\n\\nprogress and\\\" restrictiveness).\\n\\n The district court correctly identified this legal\\n\\nframework. Quoting Roland M., the district court explained that\\n\\n\\\"'[m]ainstreaming may not be ignored, even to fulfill substantive\\n\\neducational criteria.' Rather, the benefits to be gained from\\n\\n\\n\\n 11 We have recognized that educating students with\\ndisabilities with their nondisabled peers can have benefits for\\ndisabled students' social and communication skills. See Lenn v.\\nPortland Sch. Comm., 998 F.2d 1083, 1090 & n.7 (1st Cir. 1993)\\n(citing Oberti, 995 F.2d at 1216-17).\\n\\n\\n - 20 -\\n\\fmainstreaming must be weighed against the educational improvements\\n\\nthat could be attained in a more restrictive (that is, non-\\n\\nmainstream) environment.\\\" 12 C.D. II, 2018 WL 3510291, at *3\\n\\n(internal citation omitted) (quoting Roland M., 910 F.2d at 993)).\\n\\n The parents argue, again relying on applications of\\n\\nDaniel R.R., that the district court erred in failing to ask\\n\\nwhether C.D. could have been educated in the regular classroom\\n\\nconsidering \\\"the whole range of supplemental aids and services.\\\"\\n\\nOberti, 995 F.2d at 1216. The record belies this contention. The\\n\\ndistrict court here verified that Natick and the BSEA had\\n\\nconsidered \\\"the nature and severity\\\" of C.D.'s disability as well\\n\\nas the impact of \\\"supplementary aids and services.\\\" 20 U.S.C.\\n\\n§ 1412(a)(5)(A). It noted that the BSEA and Natick had both\\n\\nexamined three potential placements: the regular classroom,\\n\\nreplacement classes, and the ACCESS Program. C.D. II, 2018 WL\\n\\n3510291, at *3. Then the district court found that evidence\\n\\nsupported the BSEA's and Natick's conclusion that the ACCESS\\n\\nProgram was appropriate because of C.D.'s particular\\n\\ndisability -- an \\\"intellectual disability in conjunction with\\n\\n\\n\\n\\n 12 The parents argue that the district court \\\"erred where\\nit did not even articulate the need to balance non-academic\\nbenefits against the putative academic advantages of a\\nsubstantially separate classroom.\\\" But the district court\\nproperly understood the balancing inquiry outlined in Roland M.\\n\\n\\n - 21 -\\n\\fweaknesses in receptive and expressive language.\\\"13 Id. (internal\\n\\nquotation marks omitted).\\n\\n We see no error in the district court's appropriately\\n\\ndeferential analysis. As we have emphasized, the IDEA vests state\\n\\nand local educational officials, not federal courts, with the\\n\\nprimary responsibility to make placement decisions consistent with\\n\\n§ 1412(a)(5)(A).\\n\\n C.\\n\\n C.D.'s parents next argue that the district court\\n\\nignored the plain language of the IDEA in affirming the BSEA's\\n\\nruling that the IEPs complied with the statute's transition\\n\\nprovision. Not so.\\n\\n We have previously held that the IDEA \\\"does not require\\n\\na stand-alone transition plan.\\\" Lessard v. Wilton Lyndeborough\\n\\nCoop. Sch. Dist. (Lessard I), 518 F.3d 18, 24 (1st Cir. 2008).\\n\\nNor does the statute require that the underlying transition\\n\\nassessments take a particular form. See 20 U.S.C.\\n\\n§ 1414(d)(1)(A)(i)(VIII). Indeed, there is no restriction on the\\n\\nmeans of gathering information about a student's interests or\\n\\nabilities that may be relevant to the development of postsecondary\\n\\ntransition goals. See, e.g., Mass. Dep't of Elementary &\\n\\n\\n 13 C.D.'s parents' dispute of a related factual finding\\nmade by the BSEA in its initial ruling on the LRE issue is\\nmisplaced. The district court ultimately reviewed the facts as\\nclarified by the BSEA.\\n\\n\\n - 22 -\\n\\fSecondary Educ., Transitional Assessment in the Secondary\\n\\nTransition Planning Process, Technical Advisory SPED 2014-4, at 1-\\n\\n3 (Apr. 9, 2014) (declining to adopt 'a restrictive approach which\\n\\nmight seem to imply the required use of highly specialized formal\\n\\nassessments for each student\\\").\\n\\n The district court did not err in articulating or\\n\\napplying these transition requirements. It discussed the\\n\\nstatute's assessment and planning dimensions, it cited repeatedly\\n\\nto Massachusetts' guidance implementing the federal provision, and\\n\\nit relied on case law correctly applying the transition\\n\\nrequirement. See C.D. I, 2017 WL 3122654, at *19, *21 (citing\\n\\nSebastian M. v. King Philip Reg'l Sch. Dist., 774 F. Supp. 2d 393,\\n\\n407 (D. Mass. 2011), aff'd, 685 F.3d 79 (1st Cir. 2012)).\\n\\n The district court then reasonably applied those rules\\n\\nin affirming the BSEA's ruling. The IEPs stated grade-appropriate\\n\\ngoals and services designed to prepare C.D. for the post-secondary\\n\\ntransition.14 See Lessard I, 518 F.3d at 25; see also, e.g.,\\n\\n\\n\\n 14 Specifically, C.D.'s 2012-2013 IEP stated that C.D.'s\\nparents hoped she would receive a high school diploma and\\nvocational training. The IEP outlined educational goals and\\nservices that would have helped C.D. make progress toward that\\ndiploma, and it also provided for vocational services from the\\nschool's learning center. The 2013-2014 IEP was similar, and it\\nadded opportunities to meet with the school's guidance counselor\\nand career specialist to discuss post-secondary plans. The final\\n2014-2015 IEP further proposed educational and vocational services\\nand set out specific goals related to job readiness, job coaching,\\nand independent living.\\n\\n\\n - 23 -\\n\\fRodrigues v. Fort Lee Bd. of Educ., 458 F. App'x 124, 128 (3d Cir.\\n\\n2011) (finding adequate an IEP that listed a transition goal and\\n\\nnoted available services). And the 2012-2013 and 2013-2014 plans\\n\\nreflected and were developed based on a transition-specific\\n\\ndiscussion at the 2012-2013 IEP meeting and on extensive\\n\\neducational and psychological evaluations done of C.D. and\\n\\nprovided to Natick as part of the IEP development process. The\\n\\nfinal 2014-2015 IEP reflected and was based on assessments like\\n\\nthese as well as a formal transition assessment. All three IEPs\\n\\ncontained \\\"appropriate measurable postsecondary goals based upon\\n\\nage appropriate assessments.\\\" 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa).\\n\\n IV.\\n\\n Affirmed.\\n\\n\\n\\n\\n - 24 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1971,"cells":{"id":{"kind":"number","value":4622721,"string":"4,622,721"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Fulvio FLETE-GARCIA, A/K/A Fubio, A/K/A Israel Pagan Torres, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Flete-Garcia"},"decision_date":{"kind":"string","value":"2019-05-23"},"docket_number":{"kind":"string","value":"18-1067P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kayatta, Souter, Selya\", \"parties\": \"\", \"opinions\": [{\"author\": \"SELYA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-1067\\n 18-1116\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n FULVIO FLETE-GARCIA,\\n a/k/a Fubio, a/k/a Israel Pagan Torres,\\n\\n Defendant, Appellant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Leo T. Sorokin, U.S. District Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter,* Associate Justice,\\n and Selya, Circuit Judge.\\n\\n\\n Mark W. Shea, with whom Shea & LaRocque, LLP, was on brief,\\nfor appellant.\\n Yael T. Epstein, Attorney, Tax Division, Department of\\nJustice, with whom Richard E. Zuckerman, Principal Deputy\\nAssistant Attorney General, S. Roberts Lyons, Chief, Criminal\\nAppeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr.\\nand Alexander P. Robbins, Attorneys, Tax Division, and Andrew E.\\nLelling, United States Attorney, were on brief, for appellee.\\n\\n\\n\\n* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the\\nUnited States, sitting by designation.\\n\\fMay 23, 2019\\n\\f SELYA, Circuit Judge. Having identified defendant-\\n\\nappellant Fulvio Flete-Garcia as the architect of a massive\\n\\nswindle, the government charged him with a litany of fraud-based\\n\\ncrimes. Following four days of trial, Flete-Garcia threw in the\\n\\ntowel and entered a straight guilty plea to all 48 counts of the\\n\\nindictment. Prior to sentencing, though, Flete-Garcia experienced\\n\\nbuyer's remorse and attempted to withdraw his guilty plea. The\\n\\ndistrict court denied this motion, as well as sentencing-related\\n\\nmotions for discovery and for an evidentiary hearing. It then\\n\\nsentenced Flete-Garcia to 132 months' imprisonment and ordered him\\n\\nto make restitution in the amount of $7,737,486.10. Flete-Garcia\\n\\nappeals, raising a gallimaufry of alleged errors. Finding his\\n\\nasseverational array long on perfervid rhetoric but short on\\n\\nsubstance, we affirm.\\n\\nI. BACKGROUND\\n\\n We briefly rehearse the background of this appeal,\\n\\nreserving further elaboration for our subsequent discussion of the\\n\\nissues. We draw the facts from the trial record, the change-of-\\n\\nplea colloquy, the undisputed portions of the presentence\\n\\ninvestigation report (PSI Report), and the transcript of the\\n\\ndisposition hearing. See United States v. Arias-Mercedes, 901\\n\\nF.3d 1, 4 (1st Cir. 2018); United States v. Fernández-Santos, 856\\n\\nF.3d 10, 14 n.1 (1st Cir. 2017).\\n\\n\\n\\n\\n - 3 -\\n\\f For over half a decade, Flete-Garcia orchestrated and\\n\\noperated a lucrative tax-fraud conspiracy. To further this\\n\\ncriminal enterprise, Flete-Garcia stole personal identification\\n\\ninformation (PII) from Puerto Rico residents and used this\\n\\ninformation to prepare and file fraudulent federal income tax\\n\\nreturns.1 These fraudulent returns generated refund checks, which\\n\\nFlete-Garcia deposited (through intermediaries) for his own\\n\\nbenefit.\\n\\n Flete-Garcia's scheme involved a handful of co-\\n\\nconspirators. One such co-conspirator assisted in the preparation\\n\\nof the fraudulent tax returns, while others assisted by cashing\\n\\nrefund checks. When a co-conspirator's accounts were frozen,\\n\\nFlete-Garcia simply moved on to another individual and another set\\n\\nof accounts.\\n\\n Flete-Garcia's scheme was nothing if not ambitious. In\\n\\nhindsight, the government says that it has been able to account\\n\\nfor over $7 million in funds fraudulently obtained from the\\n\\nInternal Revenue Service (IRS) as well as $5 million, more or less,\\n\\nthat would have been paid but for the detection of the fraud.\\n\\n\\n\\n\\n 1 Residents of Puerto Rico are required to file federal income\\ntax returns only if they earn taxable income outside Puerto Rico.\\nSee 26 U.S.C. § 933(1). As a result, Puerto Rico residents were\\nparticularly attractive targets for Flete-Garcia's scheme because\\nthey were less likely to file authentic federal income tax returns.\\n\\n\\n - 4 -\\n\\f The plucked chickens eventually came home to roost. On\\n\\nMarch 9, 2017, a federal grand jury sitting in the District of\\n\\nMassachusetts returned a 48 count superseding indictment charging\\n\\nFlete-Garcia with conspiracy to defraud the United States (count\\n\\n1), see 18 U.S.C. § 371; access device fraud (counts 2 and 3), see\\n\\nid. § 1029; conversion of government property (counts 4 through\\n\\n20), see id. § 641; aggravated identity theft (counts 21 through\\n\\n37), see id. § 1028A; and money laundering (counts 38 through 48),\\n\\nsee id. § 1956(a)(1)(B)(i). Flete-Garcia initially maintained his\\n\\ninnocence, a jury was empaneled, and trial commenced on July 10,\\n\\n2017. During the first four days of trial, the government\\n\\npresented the bulk of its evidence (including nineteen of twenty-\\n\\nthree witnesses), and Flete-Garcia cross-examined nearly all of\\n\\nthe government's witnesses. As the fourth day of trial wound down,\\n\\nFlete-Garcia indicated that he wished to change his plea. He told\\n\\nthe court that no one had pressured him into this decision but,\\n\\nrather, he had \\\"started thinking about [his] family.\\\"\\n\\n The district court engaged in a careful change-of-plea\\n\\ncolloquy, see Fed. R. Crim. P. 11, and Flete-Garcia admitted his\\n\\nguilt with respect to all 48 counts. Once the court accepted the\\n\\nplea, it discharged the jury.\\n\\n Shortly thereafter, Flete-Garcia retained new counsel.\\n\\nHe also wrote a pro se letter to the district court maintaining\\n\\nthat his trial was tainted and that he wanted to \\\"null[] or void\\\"\\n\\n\\n - 5 -\\n\\fhis guilty plea. The court advised both Flete-Garcia and his new\\n\\nlawyer that it considered this letter to be without force and that\\n\\nany plea-withdrawal motion should be made by counsel. Relatedly,\\n\\nthe court postponed sentencing at Flete-Garcia's request.\\n\\n Flete-Garcia's new lawyer filed a flurry of motions.\\n\\nThese filings included a motion to withdraw Flete-Garcia's guilty\\n\\nplea, a motion to compel discovery, and a motion for an evidentiary\\n\\nhearing to determine the amount of loss. Meanwhile, the probation\\n\\noffice prepared the PSI Report, which (when issued) recommended\\n\\ncertain guideline calculations. The probation office began its\\n\\ncalculations by constituting a single group comprising counts 1\\n\\nthrough 20 and counts 38 through 48. See USSG §3D1.2(c), (d). It\\n\\nthen formed a second group comprising counts 21 through 37. See\\n\\nid. §2B1.6. Because the offense level for the money laundering\\n\\ncounts contained in the first group carried the highest offense\\n\\nlevel, the PSI Report calculated the guideline sentencing range\\n\\n(GSR) by reference to those counts. See id. §3D1.3(a). The\\n\\nensuing calculation started with a base offense level of 6, see\\n\\nid. §2B1.1, and added several enhancements. These included a\\n\\ntwenty-level enhancement for amount of loss, see id.\\n\\n§2B1.1(b)(1)(K); a two-level enhancement because the offenses of\\n\\nconviction involved more than ten victims, see id.\\n\\n§2B1.1(b)(2)(A)(i); a four-level enhancement for Flete-Garcia's\\n\\nleadership role, see id. §3B1.1(a); and a two-level enhancement\\n\\n\\n - 6 -\\n\\fbecause the money laundering convictions implicated 18 U.S.C.\\n\\n§ 1956, see USSG §2S1.1(b)(2)(B). As an offset, the PSI Report\\n\\nrecommended a two-level reduction for acceptance of\\n\\nresponsibility. See id. §3E1.1(a).\\n\\n These calculations yielded a total offense level of 32\\n\\nwhich, coupled with a criminal history category of III, produced\\n\\na GSR of 151-188 months. To complete the picture, the PSI Report\\n\\nrecommended restitution in the amount of $7,737,486.10.\\n\\n Flete-Garcia objected to many aspects of the PSI Report,\\n\\nincluding (as pertinent here) the enhancements for number of\\n\\nvictims and amount of loss. He also objected to the restitution\\n\\namount.\\n\\n On December 18, 2017, the district court denied Flete-\\n\\nGarcia's motion for an evidentiary hearing concerning amount of\\n\\nloss. Two days later, the court convened the disposition hearing.\\n\\nAt that time, it heard and denied Flete-Garcia's remaining motions,\\n\\nincluding his motion to withdraw his guilty plea and his motion to\\n\\ncompel discovery. The court also heard and rejected Flete-Garcia's\\n\\nrenewed arguments as to why an evidentiary hearing would be useful\\n\\nin determining amount of loss.\\n\\n The district court then turned to the task of fashioning\\n\\nFlete-Garcia's sentence. After entertaining additional arguments\\n\\nfrom both sides, the court accepted most of the guideline\\n\\ncalculations limned in the PSI Report. The court, however,\\n\\n\\n - 7 -\\n\\fsustained the government's objection and ruled that Flete-Garcia\\n\\n— who had only pleaded guilty near the end of the trial and\\n\\nthereafter had sought to unbuckle himself from his guilty plea —\\n\\nwas not entitled to an offense-level reduction for acceptance of\\n\\nresponsibility.\\n\\n The district court proceeded to sentence Flete-Garcia to\\n\\na downwardly variant 132-month term of immurement and ordered him\\n\\nto make restitution in the amount of $7,737,486.10. This timely\\n\\nappeal followed. In it, Flete-Garcia calumnizes his conviction\\n\\nand sentence on several fronts. We start with his claim that he\\n\\nshould have been allowed to withdraw his guilty plea. Next, we\\n\\ndeal with his claims of sentencing-related error (including those\\n\\narising out of the denial of his motions for discovery and for an\\n\\nevidentiary hearing). We then treat with his attack on the\\n\\nrestitution order and end with his ineffective assistance of\\n\\ncounsel claim.\\n\\nII. WITHDRAWAL OF GUILTY PLEA\\n\\n Because Flete-Garcia's motion to withdraw his guilty\\n\\nplea was filed before the imposition of sentence, it is governed\\n\\nby Federal Rule of Criminal Procedure 11(d)(2)(B). Under this\\n\\nrule, \\\"[a] defendant may withdraw a plea of guilty . . . after the\\n\\ncourt accepts the plea, but before it imposes sentence if . . .\\n\\nthe defendant can show a fair and just reason\\\" for its withdrawal.\\n\\nDespite its permissive nature, this standard \\\"does not endow [a\\n\\n\\n - 8 -\\n\\fdefendant] with an unfettered right to retract a guilty plea.\\\"\\n\\nUnited States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). The\\n\\ndevoir of persuasion rests with the movant, and we review the\\n\\ndistrict court's denial of such a motion solely for abuse of\\n\\ndiscretion. See id.\\n\\n A court's scrutiny of a plea-withdrawal motion must take\\n\\ninto account the totality of the relevant circumstances. See id.;\\n\\nsee also United States v. Caramadre, 807 F.3d 359, 366 (1st Cir.\\n\\n2015). This canvass includes consideration of whether the plea\\n\\nwas voluntary, intelligent, and knowing when tendered; the\\n\\nstrength of the reason(s) proffered in support of the motion to\\n\\nwithdraw; the timing of the request; and the force of any claim of\\n\\nactual innocence. See United States v. Dunfee, 821 F.3d 120, 127\\n\\n(1st Cir. 2016) (per curiam); Merritt, 755 F.3d at 9. If the\\n\\ndefendant makes a prima facie showing of an entitlement to relief,\\n\\nthe court must then factor into the decisional calculus the\\n\\nprejudice, if any, that may accrue to the government as a result\\n\\nof allowing the plea to be withdrawn. See Merritt, 755 F.3d at 9.\\n\\n In the district court — as here — Flete-Garcia complained\\n\\nthat his guilty plea was neither intelligent nor knowing because\\n\\n\\\"he did not understand many of the important aspects of the Rule\\n\\n11 hearing.\\\" The district court rejected this conclusory plaint,\\n\\nfinding that the plea was suitably informed and not the product of\\n\\nany coercion. In the court's view, it was manifest that Flete-\\n\\n\\n - 9 -\\n\\fGarcia had fully considered the decision to change his plea,\\n\\nunderstood the nature and scope of his plea, and had not made the\\n\\ndecision in the heat of the moment. Moreover, Flete-Garcia's\\n\\nproffered reason for withdrawing his plea was weak, especially\\n\\nsince his decision to plead was reached after hearing the bulk of\\n\\nthe government's evidence and an outline of the proof that\\n\\nremained. See Fernández-Santos, 856 F.3d at 16-17. Finally, the\\n\\ncourt noted that Flete-Garcia had made no claim of actual\\n\\ninnocence.\\n\\n Flete-Garcia asserts that the district court's refusal\\n\\nto allow him to retract his guilty plea was an abuse of discretion\\n\\nbecause he was confused about the factual basis for counts 2 and\\n\\n3 — and the district court compounded his confusion by\\n\\n\\\"constrain[ing]\\\" him to \\\"short yes or no answers.\\\" This assertion\\n\\nis belied by the record. The transcript of the Rule 11 hearing\\n\\nmakes pellucid that even though Flete-Garcia's responses to some\\n\\nof the district court's questions warranted further inquiry, the\\n\\ncourt conducted just such an inquiry. It patiently explained and\\n\\nre-explained the nature of the offenses to which Flete-Garcia was\\n\\npleading and recounted the implications that would follow.\\n\\n An example illustrates the district court's approach.\\n\\nWhen the court asked Flete-Garcia whether he agreed to the factual\\n\\nbasis for counts 2 and 3 (specifically, that he had possession of\\n\\ntwo lists of stolen PII), Flete-Garcia replied that he did not\\n\\n\\n - 10 -\\n\\f\\\"know where [the government] got that from.\\\" In response, the\\n\\ncourt reminded Flete-Garcia that he did not have to plead guilty,\\n\\nthat he could elect to resume the trial, and that he had the option\\n\\nof pleading guilty to some charges and continuing to contest the\\n\\nothers. The court also restated the charges that Flete-Garcia had\\n\\nquestioned (counts 2 and 3) and summarized the evidence\\n\\nunderpinning those charges. At that point, Flete-Garcia\\n\\nreaffirmed his desire to plead guilty and admitted to the factual\\n\\nbasis for all of the charges.\\n\\n In the last analysis, Rule 11 requires a district court\\n\\nto ensure that the defendant both knows and understands the nature\\n\\nof the charges to which he is pleading. See Fed. R. Crim. P.\\n\\n11(b)(1)(G). This does not mean, though, that Rule 11 is off the\\n\\ntable simply because a defendant indicates some uncertainty about\\n\\nthe factual basis for a proposed guilty plea. Where, as here, the\\n\\ncourt resolves such uncertainties to the defendant's expressed\\n\\nsatisfaction through clarification and explanation, a guilty plea\\n\\nmay qualify as voluntary, intelligent, and knowing. See United\\n\\nStates v. Ramos-Mejía, 721 F.3d 12, 15 (1st Cir. 2013).\\n\\n This is such a case, and Flete-Garcia offers no plausible\\n\\nbasis for concluding that he did not fully understand the charges\\n\\nagainst him.2 At any rate, all indications are to the contrary:\\n\\n\\n 2In the district court, Flete-Garcia attempted to bolster\\nhis argument by submitting a letter from a neuropsychologist\\n\\n\\n - 11 -\\n\\fhe was present during jury selection and nearly four full days of\\n\\ntrial, heard the prosecutor's opening statement and the testimony\\n\\nof nineteen of the government's twenty-three witnesses (including\\n\\nsome who testified about the stolen PII), and listened as the\\n\\nprosecutor summarized the remaining evidence at the Rule 11\\n\\nhearing. Additionally, the district court explained all of the\\n\\ncharges to Flete-Garcia as well as the consequences of changing\\n\\nhis plea.\\n\\n We find hollow Flete-Garcia's protestation that he felt\\n\\nconstrained by the district court to respond with yes or no\\n\\nanswers. To be sure, the district court kept a rather tight rein\\n\\non the colloquy — a commendable practice given that an empaneled\\n\\njury was being held in limbo. But the court did no more than was\\n\\nreasonably necessary to keep the proceedings on track, and we\\n\\ndiscern no error in its management of the Rule 11 hearing. Viewed\\n\\nobjectively, the court's dialogue with Flete-Garcia adroitly\\n\\nbalanced its obligation to ensure that the plea was voluntary,\\n\\nknowing, and intelligent against the need for the fair and orderly\\n\\nadministration of the Rule 11 hearing.\\n\\n\\n\\nsuggesting that he may have had \\\"situational anxiety,\\\" potentially\\nimpacting his understanding of what was transpiring in the Rule 11\\nhearing. Before us, Flete-Garcia mentions this letter in passing\\nbut makes no developed argumentation predicated on it.\\nConsequently, we deem the point abandoned. See United States v.\\nZannino, 895 F.2d 1, 17 (1st Cir. 1990) (\\\"[I]ssues adverted to in\\na perfunctory manner, unaccompanied by some effort at developed\\nargumentation, are deemed waived.\\\").\\n\\n\\n - 12 -\\n\\f The short of it is that here, as in Dunfee, Flete-Garcia\\n\\n\\\"affirmatively declared under oath at a properly conducted Rule 11\\n\\nhearing that he was guilty of the crimes with which he was\\n\\ncharged.\\\" 821 F.3d at 128. In the absence of any plausible basis\\n\\nfor discounting them, the district court was \\\"entitled to give\\n\\nweight to the defendant's statements at his change-of-plea\\n\\ncolloquy.\\\" United States v. Santiago Miranda, 654 F.3d 130, 138\\n\\n(1st Cir. 2011). On this record, we discern nothing approaching\\n\\nan abuse of discretion in the district court's determination that\\n\\nFlete-Garcia had failed to show a fair and just reason for\\n\\nwithdrawing his plea.3\\n\\nIII. CERTAIN SENTENCING RELATED MATTERS\\n\\n Flete-Garcia offers up a salmagundi of claims relating\\n\\nto certain matters adjudicated in connection with the sentencing\\n\\nhearing. We subdivide our discussion of these claims into discrete\\n\\nsegments.\\n\\n A. Enhancement for Number of Victims.\\n\\n We start with Flete-Garcia's challenge to the district\\n\\ncourt's application of a two-level enhancement for crimes\\n\\ninvolving ten or more victims. See USSG §2B1.1(b)(2)(A)(i). For\\n\\nthis purpose, a victim is described as \\\"any individual whose means\\n\\n\\n 3 To the extent that Flete-Garcia claims that his guilty plea\\nwas involuntary due to ineffective assistance of counsel, we\\naddress that claim in conjunction with his other ineffective\\nassistance claims. See infra Part V.\\n\\n\\n - 13 -\\n\\fof identification was used unlawfully or without authority.\\\" Id.\\n\\n§2B1.1, app. n.4(E)(ii). Because Flete-Garcia preserved this\\n\\nclaim of error below, we review the district court's factual\\n\\nfindings for clear error and its application of the law (including\\n\\nits application of the sentencing guidelines) de novo. See United\\n\\nStates v. Carbajal-Váldez, 874 F.3d 778, 782-83 (1st Cir. 2017),\\n\\ncert. denied, 138 S. Ct. 2586 (2018); United States v. Nuñez, 852\\n\\nF.3d 141, 144 (1st Cir. 2017).\\n\\n We have made pellucid that \\\"[c]lear error is not an\\n\\nappellant-friendly standard.\\\" Carbajal-Váldez, 874 F.3d at 783.\\n\\nThis demanding standard is satisfied only when, \\\"upon whole-\\n\\nrecord-review, an inquiring court 'form[s] a strong, unyielding\\n\\nbelief that a mistake has been made.'\\\" Nuñez, 852 F.3d at 144\\n\\n(alteration in original) (quoting United States v. Cintrón-\\n\\nEchautegui, 604 F.3d 1, 6 (1st Cir. 2010)). If two plausible but\\n\\ncompeting inferences may be drawn from particular facts, a\\n\\nsentencing court's choice between those two competing inferences\\n\\ncannot be clearly erroneous. See id. at 146; United States v.\\n\\nRuiz, 905 F.2d 499, 508 (1st Cir. 1990).\\n\\n It is by now familiar lore that the government bears the\\n\\nburden of proving the applicability of a sentencing enhancement.\\n\\nSee United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).\\n\\n\\\"It must carry this burden by a preponderance of the evidence.\\\"\\n\\nId.\\n\\n\\n - 14 -\\n\\f In this instance, it is nose-on-the-face plain that more\\n\\nthan ten people were affected by Flete-Garcia's scheme. After\\n\\nall, Flete-Garcia stole PII relating to hundreds of individuals,\\n\\nused the stolen PII corruptly, and pleaded guilty to no fewer than\\n\\nseventeen counts of aggravated identity theft. Undaunted by these\\n\\nironclad facts, Flete-Garcia rests his claim of error on language\\n\\nin the sentencing guidelines. With respect to aggravated identity\\n\\ntheft, the guidelines link the term of immurement to the statute\\n\\nof conviction. See USSG §2B1.6(a). In this case, the statute\\n\\nrequires a mandatory two-year term for a defendant who \\\"knowingly\\n\\ntransfers, possesses, or uses, without lawful authority, a means\\n\\nof identification of another person.\\\" 18 U.S.C. § 1028A.\\n\\n But there is a rub: an application note instructs that\\n\\n\\\"[i]f a sentence . . . is imposed in conjunction with a sentence\\n\\nfor an underlying offense,\\\" the sentencing court should \\\"not apply\\n\\nany specific offense characteristic for the transfer, possession,\\n\\nor use of a means of identification\\\" in fashioning the sentence\\n\\nfor the underlying offense. USSG §2B1.6, app. n.2. In other\\n\\nwords, the application note prohibits the enhancement of a sentence\\n\\nfor the same conduct (the transfer, possession, or use of a means\\n\\nof identification) that is captured by the statute.\\n\\n Flete-Garcia asserts that the number of victims\\n\\nenhancement violates the letter (or at least the spirit) of the\\n\\napplication note. We do not agree. Even though we have recognized\\n\\n\\n - 15 -\\n\\fthat the prohibition contained in section 2B1.6 may preclude some\\n\\nenhancements germane to the underlying offense, see United States\\n\\nv. Jones, 551 F.3d 19, 25 (1st Cir. 2008), Flete-Garcia's assertion\\n\\nis unfounded.\\n\\n The key is whether the proposed enhancement relates to\\n\\na characteristic of the offense. See United States v. Sharapka,\\n\\n526 F.3d 58, 62 (1st Cir. 2008). If so, it is precluded. See id.\\n\\nOtherwise, it is not precluded. See id. Flete-Garcia submits\\n\\nthat the number of victims enhancement falls into the category of\\n\\nprohibited enhancements because the sole reason for its\\n\\napplication was that he used a means of identification to\\n\\nperpetrate his crimes. Flete-Garcia, however, takes too myopic a\\n\\nview.\\n\\n Here, the number of victims enhancement does not punish\\n\\nhim simply for using a means of identification but, rather,\\n\\npunishes him for the breadth of his criminality, that is, for using\\n\\nthe means of identification of ten or more individuals in the\\n\\ncourse of his criminal activity.\\n\\n Section 2B1.6 prohibits an enhancement that is based on\\n\\nthe nature of the offense (transferring, possessing, or using a\\n\\nmeans of identification). See USSG §2B1.6, app. n.2; see also\\n\\nSharapka, 526 F.3d at 62. The guideline provision, though, is\\n\\nsilent as to an enhancement based on the breadth of the offense.\\n\\nSee United States v. Gonzales, 844 F.3d 929, 932 (10th Cir. 2016)\\n\\n\\n - 16 -\\n\\f(observing that application note 2 prohibits an enhancement based\\n\\non nature of crime but not one \\\"based on the extent of such a\\n\\ncrime\\\" (emphasis in original)). In the case at hand, the number\\n\\nof victims enhancement plainly has its genesis in the breadth of\\n\\nFlete-Garcia's criminal activity. That is an appropriate use of\\n\\nthe enhancement. See id. at 933 (explaining that enhancement\\n\\naccomplishes task of treating \\\"criminal conduct more seriously as\\n\\nthe number of stolen identities increases\\\"). Such an\\n\\ninterpretation is consistent with the structure of the enhancement\\n\\nitself, which ratchets up as the number of victims and the extent\\n\\nof the impact on them increases. Compare, e.g., USSG\\n\\n§2B1.1(b)(2)(A)(i) (increasing offense level by two for ten or\\n\\nmore victims), with, e.g., id. §2B1.1(b)(2)(C) (increasing offense\\n\\nlevel by six for substantial financial hardship to twenty-five or\\n\\nmore victims).\\n\\n So, too, the district court's application of the\\n\\nenhancement is consistent with the text of 18 U.S.C. § 1028A.\\n\\nWhile a conviction for aggravated identity theft mandates a two-\\n\\nyear sentence, the statute does not factor the number of victims\\n\\ninto the calculus of punishment.\\n\\n Our view of the application note aligns us with our\\n\\nsister circuits. All of the circuits that have considered the\\n\\nmatter have rejected claims of sentencing error similar to the\\n\\nclaim that Flete-Garcia advances. See, e.g., Gonzales, 844 F.3d\\n\\n\\n - 17 -\\n\\fat 932-33; United States v. Ford, 784 F.3d 1386, 1397-98 (11th\\n\\nCir. 2015); United States v. Anderson, 532 F. App'x 373, 378 (4th\\n\\nCir. 2013); United States v. Lyles, 506 F. App'x 440, 447 (6th\\n\\nCir. 2012); United States v. Yummi, 408 F. App'x 537, 541 (3d Cir.\\n\\n2010). By the same token, it fits comfortably with our earlier\\n\\ncases considering the interplay between other enhancements and\\n\\nUSSG §2B1.6. See, e.g., Jones, 551 F.3d at 25; (considering\\n\\ninterplay between sections 2B1.1(b)(10)(B) and 2B1.6); Sharapka,\\n\\n526 F.3d at 62 (considering interplay between sections\\n\\n2B1.1(b)(10)(A)(i), (C)(i) and 2B1.6).\\n\\n We conclude that the statute and the guideline\\n\\nprovision, read together, present no barrier to the application of\\n\\nthe number of victims enhancement in this case. As applied here,\\n\\nthe enhancement punished Flete-Garcia for the overall breadth of\\n\\nhis criminal activity — a factor not captured by the statute of\\n\\nconviction and, thus, not foreclosed by application note 2.\\n\\n That ends this aspect of the matter. Because we hold\\n\\nthat the district court did not clearly err in imposing a two-\\n\\nlevel enhancement for the presence of ten or more victims, Flete-\\n\\nGarcia's claim of error founders.\\n\\n B. Enhancement for Amount of Loss.\\n\\n Flete-Garcia posits that the district court erred in\\n\\ncalculating the amount of loss attributable to the offenses of\\n\\nconviction. In this regard, he notes that the district court\\n\\n\\n - 18 -\\n\\faccepted the government's calculation of both the amounts refunded\\n\\non fraudulent tax-return claims and the amounts sought (though not\\n\\npaid) on other fraudulent refund claims. In a nutshell, he argues\\n\\nthat these loss calculations were errant: they were based on the\\n\\nflawed testimony of witnesses, unreliable information, and unsound\\n\\nauditing methods.\\n\\n We begin with bedrock. \\\"In a fraud case resulting in\\n\\nfinancial loss, the defendant's guideline sentencing range is\\n\\ndetermined in part\\\" by the amount of loss. United States v.\\n\\nNaphaeng, 906 F.3d 173, 179 (1st Cir. 2018), cert. denied, 139 S.\\n\\nCt. 1233 (2019). For this purpose, \\\"loss is the greater of actual\\n\\nloss or intended loss.\\\" USSG §2B1.1, app. n.3(A). Since intended\\n\\nloss normally subsumes actual loss, intended loss is often the\\n\\ngreater of the two. So it is here,4 and intended loss is defined\\n\\nas \\\"the pecuniary harm that the defendant purposely sought to\\n\\ninflict,\\\" whether or not achievable. Id. §2B1.1, app. n.3(A)(ii).\\n\\n The government must prove the amount of loss by a\\n\\npreponderance of the evidence. See United States v. Curran, 525\\n\\nF.3d 74, 78 (1st Cir. 2008). In arriving at a loss figure, a\\n\\nsentencing court is free to consider both losses stemming directly\\n\\nfrom the conduct underlying the offenses of conviction and losses\\n\\n\\n 4 The PSI Report recognized the encompassing nature of the\\n\\\"intended loss\\\" rubric and distinguished between the two types of\\nloss calculated by the government as money that was claimed and\\npaid versus money that was claimed but blocked.\\n\\n\\n - 19 -\\n\\fstemming from any relevant conduct (including uncharged conduct).\\n\\nSee id.; United States v. Ranney, 298 F.3d 74, 80-81 (1st Cir.\\n\\n2002); United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).\\n\\n The sentencing court has considerable discretion in\\n\\ndetermining what evidence should be regarded as reliable in making\\n\\nfindings as to the amount of loss. See Sklar, 920 F.2d at 110.\\n\\nSuch evidence may come from \\\"virtually any dependable [source of]\\n\\ninformation.\\\" Id. It is common ground that a sentencing court's\\n\\nloss calculations are entitled to \\\"appropriate deference,\\\" given\\n\\nthe court's \\\"unique position to assess the evidence and estimate\\n\\nthe loss based upon that evidence.\\\" USSG §2B1.1, app. n.3(C).\\n\\nSimilarly, \\\"credibility determinations lie within the domain of\\n\\nthe district court,\\\" and \\\"[o]nly rarely — and in the most urgent\\n\\ncircumstances — will we, from the vista of a sterile appellate\\n\\nrecord, meddle in such matters.\\\" United States v. St. Cyr, 977\\n\\nF.2d 698, 706 (1st Cir. 1992).\\n\\n We add, moreover, that a loss calculation need not be\\n\\nprecise: the sentencing court need only make a reasonable estimate\\n\\nof the range of loss. See Curran, 525 F.3d at 78. This latitude\\n\\ncomports with the way in which amount of loss relates to a\\n\\ndefendant's sentence: the extent of the \\\"loss\\\" enhancement\\n\\ncorresponds to a range of loss amounts. See USSG §2B1.1(b)(1).\\n\\nHere, the district court's loss calculation totaled approximately\\n\\n$12.7 million, leaving a cushion of more than $3 million over the\\n\\n\\n - 20 -\\n\\fminimum amount ($9.5 million) needed to trigger the twenty-level\\n\\nenhancement. See id. §2B1.1(b)(1)(K), (L) (directing twenty-level\\n\\nenhancement for loss exceeding $9.5 million and up to $25 million).\\n\\nThus, the same enhancement results whether the loss falls at the\\n\\nbottom of the range, at the top of the range, or somewhere in the\\n\\nmiddle.\\n\\n Flete-Garcia pleaded guilty to converting seventeen\\n\\nparticular tax-refund checks (totaling $125,756) for his own use.\\n\\nAt sentencing, the government contended that this was the tip of\\n\\nthe iceberg, and that it constituted a mere fraction of the overall\\n\\nharm wrought by Flete-Garcia. The district court agreed: it was\\n\\n\\\"satisfied\\\" that \\\"$7.7 million in checks\\\" had been \\\"paid out\\\" by\\n\\nthe IRS in response to fraudulent returns instigated by Flete-\\n\\nGarcia. The court was also satisfied that approximately $5 million\\n\\nin \\\"blocked\\\" refunds (that is, refunds claimed but not paid)\\n\\nqualified as intended loss. In making these findings, the court\\n\\ncredited the trial testimony of Flete-Garcia's co-conspirators and\\n\\na testifying IRS agent, stating that it believed the witnesses'\\n\\ndescriptions of the scheme and accepted the IRS agent's method of\\n\\ncalculating the losses stemming from that scheme.\\n\\n In reviewing these determinations, we start by taking a\\n\\ncloser look at the $7.7 million in losses stemming from fraudulent\\n\\ntax-refund claims actually paid out by the IRS. To cash the checks\\n\\nthat he received, Flete-Garcia engaged a pair of co-conspirators,\\n\\n\\n - 21 -\\n\\fCarmen Guzman and Rocio Dominguez (both of whom operated businesses\\n\\nthat provided check-cashing services). Guzman and Dominguez\\n\\ntestified that they began handling checks for Flete-Garcia in 2007\\n\\nand 2009, respectively. Flete-Garcia's arrangements with the two\\n\\nwomen were similar: he would give tax-refund checks to one of\\n\\nthem, she would deposit the checks in one of her accounts, and\\n\\nwould then give Flete-Garcia a sum equal to the aggregate face\\n\\namount of the checks, less an agreed \\\"cut.\\\" Flete-Garcia did not\\n\\nappear as a named payee on any of the stacks of checks (sometimes\\n\\nas many as forty at a time) that he delivered to Guzman and\\n\\nDominguez. Guzman testified that she never took a fraudulent tax-\\n\\nrefund check from anyone other than Flete-Garcia. Dominguez,\\n\\nthough, testified that she accepted fraudulent tax-refund checks\\n\\nnot only from Flete-Garcia but also from another fraudster. She\\n\\nadded that she could \\\"count . . . in [her] hand\\\" the total number\\n\\nof fraudulent checks she received from this other fraudster.\\n\\n According to both Guzman and Dominguez, their complicity\\n\\nin Flete-Garcia's scheme continued until their accounts were\\n\\nfrozen (in or around 2012). The freezing of these accounts did\\n\\nnot deter Flete-Garcia: he simply recruited a third check-cashing\\n\\nco-conspirator, Dubin Gonzalez-Pabon (Gonzalez). Gonzalez\\n\\ntestified that he, along with another person, picked up tax-refund\\n\\nchecks from Flete-Garcia at a barbershop and gave Flete-Garcia the\\n\\nbulk of the proceeds. At the same time, Gonzalez was involved in\\n\\n\\n - 22 -\\n\\fanother tax-fraud racket (which the PSI Report classified as a\\n\\n\\\"related case\\\").\\n\\n In preparation for trial, an IRS agent, Tuan Nguyen,\\n\\nsurveyed all of the co-conspirators' bank accounts for evidence of\\n\\ndeposited tax-refund checks. While Flete-Garcia's guilty plea\\n\\npretermitted Nguyen's scheduled trial testimony, Nguyen\\n\\nnonetheless identified approximately 1,400 fraudulently obtained\\n\\nchecks and catalogued them in summary charts submitted at\\n\\nsentencing. These summary charts identified approximately $7.7\\n\\nmillion in monies actually paid out by the IRS in the form of\\n\\nfraudulently obtained tax-refund checks — and each check\\n\\ncorresponded to a tax return actually filed.\\n\\n At sentencing, Flete-Garcia assailed the government's\\n\\nloss calculations by pointing to purported anomalies in the\\n\\nevidence. In his view, these anomalies compelled the conclusion\\n\\nthat \\\"much of the data and documents used by the Government and\\n\\nthe Probation Office were flawed and contained information that\\n\\ndid not support the loss figures.\\\" Moreover, he argued that \\\"the\\n\\nchecks could not have been printed and sent from the U.S. Treasury\\n\\nin the manner described by the Government.\\\"\\n\\n The district court considered all of Flete-Garcia's\\n\\narguments. In the end, the court had no difficulty in attributing\\n\\nthe claimed $7.7 million in actual loss to Flete-Garcia. The court\\n\\ncredited the government's explanation of Nguyen's methodology and\\n\\n\\n - 23 -\\n\\fsupportedly found his summary charts reliable. Noting that checks\\n\\nidentified by the government \\\"match[ed] tax returns that were\\n\\nactually filed with the IRS,\\\" the court concluded that the actual\\n\\nloss figure — $7.7 million — was \\\"real money, actually paid\\\" by\\n\\nthe IRS and was attributable to Flete-Garcia. In reaching this\\n\\nconclusion, the court deemed it highly significant that the monies\\n\\npaid out were traceable to checks in the co-conspirators' accounts.\\n\\nAs the court put it, \\\"[t]hat's what those witnesses said\\\" and \\\"I\\n\\nbelieved them.\\\"\\n\\n The record makes manifest that the district court did\\n\\nnot blindly accept the government's reconstruction of the\\n\\npertinent events. To the contrary, the court gave due\\n\\nconsideration to Flete-Garcia's compendium of purported\\n\\nevidentiary anomalies. The court observed that Flete-Garcia\\n\\nraised \\\"some things around the margin,\\\" but found that none of the\\n\\nmatters mentioned by Flete-Garcia shook its faith in the\\n\\ncredibility of the government's witnesses.\\n\\n In this venue, Flete-Garcia argues that the district\\n\\ncourt's findings were riddled with error. He continues to insist\\n\\nthat the evidence on which the district court relied was faulty\\n\\nbecause, among other things, the checks (or at least some of them)\\n\\nwere altered; the mailing addresses for some checks did not match\\n\\nthe government's theory of the case; multiple checks were sometimes\\n\\nissued for the same taxpayer in a single tax year; the amounts of\\n\\n\\n - 24 -\\n\\fa few refund checks were not entirely congruent with the underlying\\n\\ntax returns; the checks cashed with Dominguez's help were not\\n\\naltogether consistent with her testimony; and the government\\n\\nfailed to offer any co-conspirator testimony pertaining to e-tax\\n\\nreturns. These arguments, though multifarious, boil down to — in\\n\\nhis words — an all-out assault on \\\"the reliability of the\\n\\ncooperating witnesses, as well as the documentary evidence.\\\"\\n\\n But for the most part, Flete-Garcia is firing blanks.\\n\\nTo begin, his arguments give unduly short shrift to \\\"the time-\\n\\ntested tenet that 'credibility determinations are part of the\\n\\nsentencing court's basic armamentarium.'\\\" United States v.\\n\\nBernier, 660 F.3d 543, 546 (1st Cir. 2011) (quoting United States\\n\\nv. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)). We will overturn\\n\\nsuch determinations \\\"only if we have a definite and firm conviction\\n\\nthat a mistake has been committed,\\\" id. (quoting United States v.\\n\\nGonzález-Vélez, 587 F.3d 494, 504 (1st Cir. 2009)), and the record\\n\\nin this case gives rise to nothing resembling such a conviction.\\n\\nAfter all, \\\"the sentencing judge presided over the trial and was\\n\\nin an enviable position to gauge [the witnesses'] credibility and\\n\\nto separate wheat from chaff.\\\" Id. Flete-Garcia has identified\\n\\nnothing that leads us to believe that \\\"a reasonable factfinder\\n\\nwould not credit\\\" the government's witnesses and evidence.\\n\\nAnderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).\\n\\n\\n\\n\\n - 25 -\\n\\f It would serve no useful purpose to dissect Flete-\\n\\nGarcia's wide-ranging critique, epithet by epithet. A few\\n\\nexamples, though, will help to illustrate why those criticisms are\\n\\nnowhere near as potent as Flete-Garcia would have us believe.\\n\\n Flete-Garcia asserts that Dominguez testified that she\\n\\nwrote by hand on every check that he gave her after she verified\\n\\nthat it was really an IRS tax-refund check and, thus, the checks\\n\\nin evidence from her accounts (which were devoid of her\\n\\nhandwriting) were unreliable. But Flete-Garcia is painting with\\n\\ntoo broad a brush: Dominguez testified that she followed this\\n\\npractice only \\\"in the beginning\\\" of her criminal partnership with\\n\\nFlete-Garcia. Her testimony further suggested that her business\\n\\npractices evolved in response to the burgeoning volume of checks\\n\\nthat he delivered, thus paving the way for a reasonable inference\\n\\nthat Dominguez had abandoned the time-consuming practice of\\n\\nverifying each check by the time the government's investigation\\n\\ncommenced.\\n\\n Another example makes a similar point. Flete-Garcia\\n\\nharps on the fact that the government's charts included some\\n\\ninstances of multiple refund checks issued for the same social\\n\\nsecurity number in the same year. He complains that the government\\n\\noffered no explanation for how this phenomenon could have occurred\\n\\nwhen the IRS screens for duplicate social security numbers. But\\n\\nas one of the government's witnesses explained, a refund check\\n\\n\\n - 26 -\\n\\fcould get issued for a bogus social security number if the error\\n\\nwas \\\"not accounted for in time.\\\" We think that this testimony,\\n\\nalthough specifically referencing fictitious social security\\n\\nnumbers rather than duplications, is sufficient to ground a\\n\\nreasonable inference that fraud detection is not always automatic.\\n\\nSo viewed, the presence of duplicate social security numbers did\\n\\nnot render the government's charts wholly unreliable.\\n\\n A third example deals with Flete-Garcia's complaint\\n\\nabout the government's failure to offer particularized evidence\\n\\nabout e-tax returns. Although the government's exhibits did\\n\\ninclude some e-tax returns, nothing in the record furnishes a basis\\n\\nfor a founded claim that some special sort of proof was required\\n\\nwith respect to those returns. The testimony that the government\\n\\noffered to validate the exhibits perforce validate the e-tax\\n\\nreturns as well.\\n\\n To sum up, the district court had wide discretion to\\n\\n\\\"evaluate virtually any dependable information\\\" and determine the\\n\\nprobative value of such information with respect to issues material\\n\\nto sentencing. United States v. Bradley, 917 F.2d 601, 605 (1st\\n\\nCir. 1990). Although some of the discrepancies identified by\\n\\nFlete-Garcia might plausibly suggest problems with a few of the\\n\\nitems on which the district court relied, such an inference was by\\n\\nno means compelled. And as we have said, \\\"when there are two\\n\\nplausible views of the record, the sentencing court's adoption of\\n\\n\\n - 27 -\\n\\fone such view cannot be clearly erroneous.\\\" St. Cyr, 977 F.2d at\\n\\n706. We conclude, therefore, that the district court's finding of\\n\\n$7.7 million in losses actually paid was not clearly erroneous.\\n\\n This brings us to the approximately $5 million in\\n\\nintended loss attributed to \\\"blocked\\\" refunds. The facts\\n\\nundergirding this finding came largely from the testimony of yet\\n\\nanother co-conspirator: Juan Santiago. Santiago recalled that\\n\\nFlete-Garcia gave him a computer, the PII, a list of addresses,\\n\\nand a list of employer identification numbers. Santiago then was\\n\\ninstructed how to plug this information into tax-preparation\\n\\nsoftware and how to prepare tagalong W-2 forms (ostensibly issued\\n\\nby \\\"any number of companies\\\"). He worked his part of the scheme\\n\\nover the course of several years, but on two occasions sold PII to\\n\\na person who turned out to be a government cooperator.\\n\\n With the lists of PII in evidence, an IRS agent, Richard\\n\\nAdams, described the methodology that he used to identify\\n\\nfraudulently filed tax-refund claims deriving from these lists.\\n\\nIn general terms, Adams compared each filed tax return\\n\\ncorresponding to a name in the PII to independent information\\n\\nobtained from an IRS database. When he spotted a mismatch, he\\n\\nclassified the return as fraudulent. He then prepared summary\\n\\ncharts, which catalogued approximately $5 million in bogus\\n\\n\\\"blocked\\\" claims.\\n\\n\\n\\n\\n - 28 -\\n\\f The sentencing court was intimately familiar with this\\n\\ntestimony: it not only presided over the trial but also presided\\n\\nover the change-of-plea hearing (at which Flete-Garcia admitted\\n\\nhis guilt with respect to, inter alia, access device fraud arising\\n\\nout of his possession of the two lists of PII). The court made an\\n\\nexpress finding that Santiago \\\"was a truthful witness.\\\" Similarly,\\n\\nit found Adams' methodology (and, thus, his summary charts)\\n\\nreliable.\\n\\n Even so, the court fretted over whether all $5 million\\n\\ncould fairly be attributed to Flete-Garcia given that Santiago had\\n\\nadmitted to doing some \\\"freelancing.\\\" In the end, though, the\\n\\ncourt accepted the government's explanation that Santiago's\\n\\nfreelancing was limited to the sale of the lists of PII and of\\n\\nchecks not attributable to Flete-Garcia. Relatedly, the court\\n\\nfound that Santiago consistently used the lists to advance Flete-\\n\\nGarcia's scheme by \\\"prepar[ing] returns that were rejected by the\\n\\nIRS.\\\" Given these findings — and taking into account that the\\n\\ngovernment had not attributed all the losses from Santiago's\\n\\nactivities to Flete-Garcia — the court concluded that the\\n\\ngovernment had carried its burden of proving by preponderant\\n\\nevidence an intended loss of $5 million referable to the \\\"blocked\\\"\\n\\nrefunds.\\n\\n Flete-Garcia tries to sidestep this hurdle, taking issue\\n\\nwith both Santiago's veracity and the related amount of loss. To\\n\\n\\n - 29 -\\n\\fbolster his arguments, he points out that the summary charts\\n\\ncontain addresses across the United States. He says that when\\n\\nSantiago sold the PII, he did not sell the accompanying list of\\n\\naddresses and, in any event, the geographic diversity of addresses\\n\\ncontradicts Santiago's testimony that the tax refunds obtained\\n\\nwere mostly directed to post office boxes in Massachusetts and\\n\\nLouisiana. He adds that the W-2 forms reflected putative employers\\n\\ndifferent than those identified by Santiago.\\n\\n These arguments lack force. Santiago's testimony, found\\n\\ncredible by the district court, forges a direct link between Flete-\\n\\nGarcia and the PII. To seal the deal, the record shows with\\n\\nconspicuous clarity that the IRS used the PII from the lists —\\n\\nlists that Flete-Garcia pleaded guilty to possessing — to identify\\n\\nthe suspect tax returns. While Santiago admitted to freelancing,\\n\\nthe court reasonably credited the government's explanation that\\n\\nSantiago's separate activities were not included in the loss\\n\\ncalculation performed for Flete-Garcia. Viewing the record as a\\n\\nwhole, the sentencing court had more than enough reliable\\n\\ninformation to ground its finding, by a preponderance of the\\n\\nevidence, that the $5 million loss was attributable to Flete-\\n\\nGarcia.\\n\\n We add a coda. In this case, the sentencing court was\\n\\noperating with a substantial cushion. The court found the\\n\\naggregate amount of loss to be approximately $12.7 million, even\\n\\n\\n - 30 -\\n\\fthough all that was needed to justify the twenty-level enhancement\\n\\nwas a loss amount of $9.5 million. It follows that Flete-Garcia\\n\\ncannot demonstrate reversible error with respect to the amount-\\n\\nof-loss enhancement simply by nibbling around the edges of the\\n\\ndistrict court's findings: he must persuade us that at least $3.2\\n\\nmillion of the loss attributed to him by the court was the product\\n\\nof clear error. We are not so persuaded.\\n\\n Mathematics is an exact science. Engineering is an exact\\n\\nscience. But calculating amount of loss under the sentencing\\n\\nguidelines is far from an exact science. In fraud cases, amount\\n\\nof loss is meant to be a proxy for the harm (both actual and\\n\\nintended) inflicted by the fraudster's nefarious activities. All\\n\\nthat is required is a reasonable estimate of the amount of loss.\\n\\nSee Curran, 525 F.3d at 78. Here, the district court's findings,\\n\\nwhich spell out how and why the amount of loss attributable to\\n\\nFlete-Garcia comfortably exceed the $9.5 million threshold, easily\\n\\npass muster. Clear error is clearly absent.\\n\\n C. Discovery.\\n\\n Three days before his scheduled sentencing, Flete-Garcia\\n\\nmoved to compel production of materials regarding the IRS agent,\\n\\nJamie Clarke, who had overseen his case. Flete-Garcia averred\\n\\nthat, after he had pleaded guilty, Clarke was the subject of an\\n\\nassault allegation reported in the Boston Globe and that everything\\n\\n\\n\\n\\n - 31 -\\n\\fpertaining to the allegation was material to his case. The\\n\\ngovernment opposed the motion, and the district court denied it.\\n\\n We review the denial of a motion to compel discovery in\\n\\na criminal case for abuse of discretion. See United States v.\\n\\nCaro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005). Typically, the\\n\\ngovernment is obliged \\\"to disclose evidence in its possession that\\n\\nis favorable to the accused and material to guilt or punishment.\\\"\\n\\nUnited States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011)\\n\\n(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). To prevail on\\n\\na motion to compel, the defendant must show a likelihood of\\n\\nprejudice stemming from the government's nondisclosure. See\\n\\nUnited States v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir.\\n\\n1999). Thus, when a criminal defendant seeks discovery, he must\\n\\n\\\"be able to articulate with some specificity what evidence he hopes\\n\\nto find in the requested materials, why he thinks the materials\\n\\ncontain this evidence, and finally, why this evidence would be\\n\\nboth favorable to him and material.\\\" Prochilo, 629 F.3d at 269.5\\n\\n\\n 5 The parties have treated the denial of Flete-Garcia's motion\\nto compel discovery as a matter controlled by the Supreme Court's\\nwatershed opinion in Brady, 373 U.S. at 87. The fit is not perfect:\\nit is not clear that Brady entitles a defendant to evidence at\\nsentencing when that evidence relates exclusively to a matter that\\noccurred after the completion of the trial. Here, however, we\\nneed not pursue this question. \\\"The animating principle of Brady\\nis the 'avoidance of an unfair trial,'\\\" United States v. Mathur,\\n624 F.3d 498, 506 (1st Cir. 2010) (quoting Brady, 373 U.S. at 87),\\nand the parties regarded Brady as controlling. We therefore\\nassume, without deciding, that Brady is the beacon by which we\\nmust steer.\\n\\n\\n - 32 -\\n\\f Clarke did not testify at Flete-Garcia's trial.\\n\\nNevertheless, Flete-Garcia says that the requested information was\\n\\nmaterial because Clarke was present at trial, answered some\\n\\nquestions for the district court (out of the jury's earshot),\\n\\nserved as the lead case agent, and had access to all of the\\n\\ninformation that the government used to calculate the loss amounts.\\n\\n The district court denied Flete-Garcia's motion,\\n\\ndetermining that the government's investigation of Clarke was\\n\\nirrelevant and immaterial because that investigation did not bear\\n\\non Flete-Garcia's case. The court noted that Clarke neither\\n\\ncompiled the summary charts that reflected the loss computations\\n\\nnor testified at trial. And the assault allegation — though\\n\\nserious — was wholly unrelated to Flete-Garcia's case.\\n\\n The government concedes that Flete-Garcia's lawyer spoke\\n\\nwith the prosecutor before sentencing and asked for \\\"all\\n\\ninformation regarding prior complaints against Special Agent\\n\\nClarke and all information regarding the current investigation of\\n\\nSpecial Agent Clarke.\\\" Thus, the question reduces to whether the\\n\\ndistrict court abused its discretion in failing to find that the\\n\\nrequested information was likely to be both favorable to Flete-\\n\\nGarcia and material to his case.\\n\\n We discern no abuse of discretion in the district court's\\n\\ndenial of the motion to compel discovery. Flete-Garcia submits\\n\\nthat \\\"the allegations against . . . Clarke indicate a life\\n\\n\\n - 33 -\\n\\funraveling\\\" and that (given the other questions raised about the\\n\\nreliability of the government's evidence) \\\"the integrity of the\\n\\nagent who was responsible for that evidence is material.\\\" But the\\n\\nallegation against Clarke was simply that: a bare allegation.\\n\\nMore importantly, Flete-Garcia's quest for discovery had all the\\n\\nearmarks of an old-fashioned fishing expedition. He never\\n\\nexplained — apart from rank speculation — how information about\\n\\nthat allegation might have altered the course of the sentencing\\n\\nproceeding or otherwise affected his case. Where, as here, a\\n\\ngovernment agent is alleged to have committed misconduct unrelated\\n\\nto an earlier investigation that he supervised, such an allegation,\\n\\nwithout more, does not render the earlier investigation suspect.\\n\\nCf. United States v. Nelson-Rodriguez, 319 F.3d 12, 35 (1st Cir.\\n\\n2003) (finding no Brady violation when \\\"government failed to\\n\\nproduce . . . prior investigations which contained allegations\\n\\nthat [confidential informant] was involved in . . . murders\\\"\\n\\nbecause his \\\"alleged role in [those] murders was a collateral\\n\\nmatter\\\").\\n\\n To say more on this point would be to paint the lily. A\\n\\ndefendant ordinarily must make some showing of prejudice before an\\n\\nappellate court will step in and overrule a district court's\\n\\nreasoned decision to deny discovery, see Rosario-Peralta, 199 F.3d\\n\\nat 559, and Flete-Garcia has made no such showing here. Flete-\\n\\nGarcia's theory of materiality is based entirely on conjecture\\n\\n\\n - 34 -\\n\\fand, in such circumstances, a district court's refusal to compel\\n\\nproduction of requested information is not an abuse of discretion.\\n\\nSee United States v. Goris, 876 F.3d 40, 45 (1st Cir. 2017), cert.\\n\\ndenied, 138 S. Ct. 2011 (2018).\\n\\n D. Evidentiary Hearing.\\n\\n At sentencing, Flete-Garcia moved for an evidentiary\\n\\nhearing, suggesting that one was needed to reconcile the parties'\\n\\ncompeting narratives about the amount of loss. The district court\\n\\ndenied his motion, and Flete-Garcia assigns error.\\n\\n A criminal defendant, facing the imposition of sentence,\\n\\nis not entitled to an evidentiary hearing on demand. See United\\n\\nStates v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987) (explaining\\n\\nthat \\\"hearings cannot be convened at the whim of a suitor, made\\n\\navailable like popsicles in July, just because a passerby would\\n\\nlike to have one\\\"). The decision as to whether to hold such a\\n\\nhearing \\\"is left to the sound discretion of the district court.\\\"\\n\\nUnited States v. Brown, 621 F.3d 48, 57 (1st Cir. 2010). At\\n\\nsentencing, evidentiary hearings are the exception, not the rule\\n\\n— and an order denying an evidentiary hearing is reviewed only for\\n\\nabuse of discretion. See United States v. Shattuck, 961 F.2d 1012,\\n\\n1014-15 (1st Cir. 1992).\\n\\n In gauging the need for an evidentiary hearing, we\\n\\nconsider whether the defendant made \\\"a sufficient threshold\\n\\nshowing that material facts [were] in doubt or in dispute.\\\" United\\n\\n\\n - 35 -\\n\\fStates v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993) (quoting\\n\\nUnited States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)).\\n\\nBefore the district court, Flete-Garcia claimed that a hearing was\\n\\nneeded because \\\"the evidence in this case does not line up with\\n\\nthe sworn testimony, and there are evidentiary anomalies that do\\n\\nnot comport with the [g]overnment's claims at trial.\\\" In his view,\\n\\n\\\"[w]itnesses need[ed] to be subjected to cross-examination on the\\n\\ncritical problems with the evidence that underlies the loss\\n\\ncalculation.\\\"\\n\\n The district court disagreed, denying the motion and\\n\\nholding that Flete-Garcia did \\\"not identif[y] disputed issues of\\n\\nmaterial fact.\\\" The court noted, however, that it would be open\\n\\nto reconsidering its decision depending on what transpired at the\\n\\ndisposition hearing.\\n\\n During the disposition hearing, Flete-Garcia once again\\n\\ntried to convince the district court of the desirability of an\\n\\nevidentiary hearing. He emphasized the evidentiary anomalies to\\n\\nwhich he earlier had referred by, for example, pointing to some\\n\\ninstances in which there was a mismatch between the issue date and\\n\\nthe deposit date of particular checks. The district court\\n\\nacknowledged that the date discrepancy was a \\\"fair point[],\\\" but\\n\\nconcluded that no additional testimony was necessary because \\\"the\\n\\nvast majority, if not all of\\\" the dates matched.\\n\\n\\n\\n\\n - 36 -\\n\\f On appeal, Flete-Garcia maintains that there were \\\"clear\\n\\nproblems with the evidence\\\" and that, without a hearing, he was\\n\\n\\\"hamstrung in exploring these problems.\\\" In support, he relies on\\n\\na guideline provision instructing that \\\"the parties shall be given\\n\\nan adequate opportunity to present information to the court\\\"\\n\\nregarding a factor that is \\\"reasonably in dispute.\\\" USSG\\n\\n§6A1.3(a).\\n\\n Flete-Garcia's reliance on section 6A1.3 is mislaid. In\\n\\nterms, this provision is meant to ensure that, at sentencing, a\\n\\ndefendant is \\\"given an adequate opportunity\\\" to be heard. United\\n\\nStates v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989) (quoting USSG\\n\\n§6A1.3(a)). But an \\\"adequate opportunity\\\" is not always synonymous\\n\\nwith an evidentiary hearing, see id., and Flete-Garcia had a more-\\n\\nthan-adequate opportunity to be heard and to question the evidence\\n\\ngermane to sentencing.\\n\\n For one thing, much of the evidence relating to loss was\\n\\npresented at trial, and Flete-Garcia had the opportunity to cross-\\n\\nexamine the witnesses who presented it (including Adams, Guzman,\\n\\nDominguez, Gonzalez, and Santiago). For another thing, Flete-\\n\\nGarcia's counsel was able to argue extensively at the disposition\\n\\nhearing about perceived problems with the government's evidence.\\n\\nIn the circumstances of this case, no more was exigible to satisfy\\n\\nthe \\\"adequate opportunity\\\" requirement.\\n\\n\\n\\n\\n - 37 -\\n\\f We acknowledge that some of the questions raised by\\n\\nFlete-Garcia were nuanced. But in McAndrews, we recognized that\\n\\n\\\"we have consistently abjured mandatory evidentiary hearings in a\\n\\nwide variety of . . . delicate [and] nuanced situations.\\\" 12 F.3d\\n\\nat 279. Here, the \\\"evidentiary anomalies\\\" mentioned by Flete-\\n\\nGarcia dealt mainly with peripheral matters and did not cast any\\n\\nsignificant shadow over the government's proof. Moreover, the\\n\\ndistrict court was in an excellent position to weigh these alleged\\n\\nanomalies and gauge their import even without an evidentiary\\n\\nhearing. As we previously have noted, the district court had\\n\\npresided over the trial and was intimately familiar with the\\n\\nevidence before it. We must, therefore, accord substantial\\n\\ndeference to its determination that an evidentiary hearing would\\n\\nnot have been productive. See id. at 280; Shattuck, 961 F.2d at\\n\\n1015; cf. United States v. Cannons Eng'g Corp., 899 F.2d 79, 94\\n\\n(1st Cir. 1990) (warning that \\\"[d]istrict courts are busy places\\n\\nand makework hearings are to be avoided\\\"). Giving the district\\n\\ncourt its due, we discern no abuse of the court's broad discretion\\n\\nin its denial of Flete-Garcia's motion for an evidentiary hearing.\\n\\n E. The Due Process Claim.\\n\\n Flete-Garcia asserts, for the first time on appeal, that\\n\\nhis due process rights were violated by the district court's\\n\\n\\n\\n\\n - 38 -\\n\\freliance on false and misleading evidence.6 \\\"The plain error\\n\\nhurdle is high.\\\" United States v. Hunnewell, 891 F.2d 955, 956\\n\\n(1st Cir. 1989). To prevail under plain error review, an appellant\\n\\nmust show \\\"(1) that an error occurred (2) which was clear or\\n\\nobvious and which not only (3) affected the defendant's substantial\\n\\nrights, but also (4) seriously impaired the fairness, integrity,\\n\\nor public reputation of judicial proceedings.\\\" United States v.\\n\\nDuarte, 246 F.3d 56, 60 (1st Cir. 2001).\\n\\n The Due Process Clause protects a defendant by, inter\\n\\nalia, safeguarding against a sentence predicated on information\\n\\nthat is \\\"false or materially incorrect.\\\" United States v. Curran,\\n\\n926 F.2d 59, 61 (1st Cir. 1991). We have cautioned, however, that\\n\\n\\\"the due process right at sentencing is not as robust as the due\\n\\nprocess right at trial.\\\" United States v. Stile, 845 F.3d 425,\\n\\n430 (1st Cir. 2017). Even so, \\\"due process . . . requires that\\n\\nthe defendant be given an adequate opportunity to refute\\n\\ninformation relied on at sentencing.\\\" Id. (quoting United States\\n\\nv. Wilfred Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir. 1992)).\\n\\n\\n\\n\\n 6Flete-Garcia suggests that this argument is not new, noting\\nthat he contended at sentencing that some of the government's\\nevidence was unreliable. The fly in the ointment, though, is that\\nFlete-Garcia did not so much as suggest that the district court's\\nreliance on this evidence might violate due process. It follows\\nthat no due process claim was preserved. See Zannino, 895 F.2d at\\n17; see also Clauson v. Smith, 823 F.2d 660, 665-66 (1st Cir. 1987)\\n(concluding that new legal interpretations of factual record\\n\\\"cannot be surfaced for the first time on appeal\\\").\\n\\n\\n - 39 -\\n\\fRelatedly, due process demands that a sentencing court \\\"consider\\n\\nall the available evidence, including conflicting evidence\\\" to\\n\\n\\\"assure itself that a piece of proof is sufficiently reliable.\\\"\\n\\nUnited States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993).\\n\\n Here, Flete-Garcia was unquestionably on fair notice of\\n\\nall of the facts that the government deemed relevant to the\\n\\nimposition of sentence. Cf. United States v. Berzon 941 F.2d 8,\\n\\n19-20 (1st Cir. 1991) (holding that due process requires that\\n\\ndefendant be given fair notice of conduct and facts that will\\n\\ninform the sentencing court's determinations). Many of them had\\n\\nbeen explored during the nearly four days of trial, and others had\\n\\nsurfaced either at the Rule 11 hearing or in the PSI Report. Some\\n\\nof these facts may have been arguable, but none of them was plainly\\n\\nfalse. Moreover, Flete-Garcia was given wide latitude in his\\n\\nattempts to poke holes in the government's factual mosaic, and he\\n\\nwas able to develop his argument that some other fraud, independent\\n\\nof his own criminality, was afoot.\\n\\n For aught that appears, Flete-Garcia received all the\\n\\nprocess that was due. His claim of error therefore stumbles at\\n\\nthe first step of the plain error inquiry.\\n\\nIV. RESTITUTION\\n\\n Flete-Garcia's next plaint builds on one of his earlier\\n\\nplaints. He points to arguments that he marshalled in reproving\\n\\nthe sentencing court's findings with respect to amount of loss,\\n\\n\\n - 40 -\\n\\fsee supra Part III(B), and asserts that those arguments \\\"make clear\\n\\nthat the . . . restitution order is flawed.\\\" This bareboned\\n\\nassertion does not get him very far.\\n\\n The district court imposed the restitution order\\n\\npursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.\\n\\n§ 3663A. \\\"[T]he MVRA mandates that a defendant convicted of\\n\\ncertain federal crimes, including those 'committed by fraud or\\n\\ndeceit,' must make restitution to victims commensurate with . . .\\n\\nactual losses.\\\" Naphaeng, 906 F.3d at 179 (quoting 18 U.S.C.\\n\\n§ 3663A(c)(1)(A)(ii)). Although restitution typically bears a\\n\\nrelationship to amount of loss, the two are conceptually distinct.\\n\\nIn fraud cases, the amount of loss is an integer in the sentencing\\n\\ncalculus: it is computed in order to establish the defendant's\\n\\noffense level and, thus, his GSR. Viewed in context, then, amount\\n\\nof loss is \\\"the primary metric by which 'the seriousness of the\\n\\noffense and the defendant's relative culpability' are measured.\\\"\\n\\nUnited States v. Alphas, 785 F.3d 775, 782 (1st Cir. 2015) (quoting\\n\\nUSSG §2B1.1, cmt. (bckg'd)).\\n\\n Restitution is a horse of a different hue, serving a\\n\\nwholly different purpose. It \\\"is designed to compensate the\\n\\nvictim, not to punish the offender.\\\" Naphaeng, 906 F.3d at 179.\\n\\nMoreover, restitution deals exclusively with losses actually\\n\\nsustained and (unlike amount of loss calculations) makes no\\n\\nprovision for intended loss. See Alphas, 785 F.3d at 786. To\\n\\n\\n - 41 -\\n\\fthat end, the MVRA directs that restitution shall be made \\\"to each\\n\\nvictim in the full amount of each victim's losses as determined by\\n\\nthe court.\\\" 18 U.S.C. § 3664(f)(1)(A). And whereas loss\\n\\ncalculations require only a reasonable estimate of the range of\\n\\nloss, see Curran, 525 F.3d at 78, the entire amount of restitution\\n\\nmust be supported — albeit only by \\\"a modicum of reliable\\n\\nevidence,\\\" United States v. Vaknin, 112 F.3d 579, 587 (1st Cir.\\n\\n1997).\\n\\n We generally review preserved challenges to restitution\\n\\norders for abuse of discretion. See Naphaeng, 906 F.3d at 179.\\n\\nUnpreserved challenges are, at best, reviewed for plain error.\\n\\nSee United States v. Sánchez-Maldonado, 737 F.3d 826, 828 (1st\\n\\nCir. 2013). Here, Flete-Garcia objected to the restitution section\\n\\nin the PSI Report, but he did not renew this objection either in\\n\\nhis sentencing memorandum or at the disposition hearing. We thus\\n\\ntreat his challenge to the restitution order as forfeited and\\n\\nreview it only for plain error.7 See Duarte, 246 F.3d at 60.\\n\\n Flete-Garcia's argument with respect to restitution is\\n\\nnebulous. His opening brief contends, in conclusory terms, that\\n\\n\\n 7The government insists that Flete-Garcia waived his\\nchallenge to the restitution order \\\"by remaining silent during the\\nsentencing hearing\\\" and, thus, that his claim of error is\\nunreviewable. See United States v. Rodriguez, 311 F.3d 435, 437\\n(1st Cir. 2002) (distinguishing between waived challenges and\\nforfeited challenges). We assume, favorably to Flete-Garcia, that\\nhis objection to the restitution order was merely forfeited, not\\nwaived.\\n\\n\\n - 42 -\\n\\f\\\"[t]he problems\\\" he had identified with respect to the government's\\n\\nloss calculations \\\"make clear that the evidence relied upon by the\\n\\n[district] court for the restitution order is flawed and thus\\n\\ninsufficient to support the restitution order.\\\" His reply brief\\n\\nreiterates that \\\"the loss figure [is] incorrect\\\" and that \\\"[t]he\\n\\nloss calculation is what drove the restitution amount.\\\" In effect,\\n\\nthen, he tries to copy and paste his loss-calculation arguments —\\n\\narguments that we already have rejected, see supra Part III(B) —\\n\\nin support of his restitution claim. He offers nothing that\\n\\nindicates an awareness of the differing criteria for loss\\n\\ncalculations and restitution calculations, nor does he attempt to\\n\\ntailor his amount of loss arguments to the restitution context.\\n\\nAt the end of the day, Flete-Garcia has left \\\"the court to do\\n\\ncounsel's work, create the ossature for the argument, and put flesh\\n\\non its bones.\\\" United States v. Zannino, 895 F.2d 1, 17 (1st Cir.\\n\\n1990).\\n\\n Flete-Garcia's failure to tailor his arguments to the\\n\\nrestitution context drains them of any force. As we have\\n\\nexplained, there are significant differences between the proper\\n\\nmethod of calculating loss and the proper method of calculating\\n\\nrestitution — a fact that is made starkly apparent by the\\n\\nsubstantial dollar differential between the district court's loss\\n\\ncalculation (approximately $12.7 million) and its restitution\\n\\naward (approximately $7.7 million). Flete-Garcia could have\\n\\n\\n - 43 -\\n\\fshaped his restitution argument accordingly. For example, he could\\n\\nhave argued (perhaps successfully) that the handful of checks\\n\\nDominguez admitted to cashing for another individual could not be\\n\\nincluded in computing the restitution order because that other\\n\\nfraudster's victims were not \\\"directly and proximately harmed\\\" by\\n\\nFlete-Garcia's malefactions. 18 U.S.C. § 3663A(a)(2). But Flete-\\n\\nGarcia did not advance that argument, either in the district court\\n\\nor on appeal, much less make any attempt to quantify the monetary\\n\\nvalue of the handful of checks. Given his default, there is no\\n\\nreason why we should make such an argument for him. See Zannino,\\n\\n895 F.2d at 17 (warning that \\\"a litigant has an obligation 'to\\n\\nspell out its arguments squarely and distinctly,' or else forever\\n\\nhold its peace\\\" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631,\\n\\n635 (1st Cir. 1988))); cf. Paterson-Leitch Co., Inc. v. Mass. Mun.\\n\\nWholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988) (\\\"Courts,\\n\\nlike the Deity, are most frequently moved to help those who help\\n\\nthemselves.\\\").\\n\\n Cognizant that a \\\"court's calculation of restitution is\\n\\nnot held to standards of scientific precision,\\\" Sánchez-Maldonado,\\n\\n737 F.3d at 828, we discern no plain error in the district court's\\n\\nrestitution order. The government introduced testimony from\\n\\nmultiple witnesses and detailed charts substantiating the $7.7\\n\\nmillion paid out by the IRS. The charts delineated particular\\n\\namounts of money, actually expended, based on each co-\\n\\n\\n - 44 -\\n\\fconspirator's bank records. The district court concluded that\\n\\nthis evidence laid a solid foundation for its restitution order.\\n\\n In the circumstances of this case, the standard of review\\n\\nis dispositive. As said, Flete-Garcia's challenges to the\\n\\nrestitution order are reviewable only for plain error — and \\\"[t]he\\n\\nproponent of plain error must carry the devoir of persuasion as to\\n\\neach of the four elements that collectively comprise the plain\\n\\nerror standard.\\\" United States v. Bramley, 847 F.3d 1, 5 (1st\\n\\nCir. 2017). Even if we assume for the sake of argument that there\\n\\nmay have been some error (perhaps an obvious error) in the district\\n\\ncourt's restitution calculation, Flete-Garcia has made no argument\\n\\nregarding the extent to which any such error affected that\\n\\ncalculation. He has not shown, for example, that the restitution\\n\\norder is off-target by, say, $100,000, or $50,000, or $5. Instead,\\n\\nhe makes generalized allegations that inaccuracies permeate the\\n\\nrestitution order — and he leaves it to us to do the juridical\\n\\nequivalent of an archeological dig and monetize his allegations.\\n\\n We have admonished before that parties act at their peril\\n\\nin leaving \\\"the court to do counsel's work,\\\" Zannino, 895 F.2d at\\n\\n17, and we are reluctant to reward such tactics. The third element\\n\\nof the plain error inquiry requires that an appellant demonstrate\\n\\n\\\"a reasonable probability that, but for the error, the outcome\\n\\nwould have been different.\\\" Bramley, 847 F.3d at 7. Flete-Garcia\\n\\nhas made no such demonstration but, rather, leaves us to work out\\n\\n\\n - 45 -\\n\\fhow the claimed errors — even if they apply in the restitution\\n\\ncontext — may affect the amount of restitution that the district\\n\\ncourt ordered. This causal approach to appellate advocacy —\\n\\nthrowing generalized scraps of information on the table and hoping\\n\\nthat the panel will make a meal of them — falls well short of what\\n\\nthe third element of plain error demands.\\n\\n Given Flete-Garcia's utter failure to carry his burden\\n\\nwith respect to the third element of the plain error inquiry, the\\n\\nfourth element also cuts against him. We think it evident that\\n\\nthe claimed errors, if left uncorrected, will not \\\"seriously\\n\\nimpair[] the fairness, integrity, or public reputation of judicial\\n\\nproceedings.\\\" Duarte, 246 F.3d at 60.\\n\\n The short of it is that we find no plain error.\\n\\nTherefore, we affirm the district court's restitution order.\\n\\nV. INEFFECTIVE ASSISTANCE OF COUNSEL\\n\\n In a final attempt to improve his lot, Flete-Garcia\\n\\ninsists that the representation provided by his trial counsel was\\n\\nineffective. See U.S. Const. amend. VI; see also Strickland v.\\n\\nWashington, 466 U.S. 668, 687 (1984). He offers vignettes\\n\\nillustrating his counsel's allegedly deficient performance —\\n\\nignoring him, withholding discovery materials from him, and\\n\\nfailing to make certain inquiries when cross-examining witnesses\\n\\n— and says that, as a result of this feckless representation, he\\n\\nfelt that he had no plausible alternative but to plead guilty.\\n\\n\\n - 46 -\\n\\fThis claim of error was never adjudicated in the district court:\\n\\nalthough Flete-Garcia made disparaging remarks about his trial\\n\\ncounsel's shortcomings and suggested that ineffective assistance\\n\\ncontributed to his decision to plead guilty, he never advanced a\\n\\nSixth Amendment claim. Consequently, no effort was made to develop\\n\\na record suitable for the adjudication of such a claim.\\n\\n \\\"We have held with a regularity bordering on the\\n\\nmonotonous that fact-specific claims of ineffective assistance of\\n\\ncounsel cannot make their debut on direct review of criminal\\n\\nconvictions, but, rather, must originally be presented to, and\\n\\nacted upon by, the trial court.\\\" United States v. Mala, 7 F.3d\\n\\n1058, 1063 (1st Cir. 1933). \\\"In adopting this prudential praxis,\\n\\nwe have reasoned that 'such claims typically require the resolution\\n\\nof factual issues that cannot efficaciously be addressed in the\\n\\nfirst instance by an appellate tribunal.'\\\" United States v.\\n\\nSantana-Dones, 920 F.3d 70, 82 (1st Cir. 2019) (quoting Mala, 7\\n\\nF.3d at 1063). In particular, \\\"questions about whether counsel's\\n\\nchallenged decisions were mistakes of a constitutional magnitude\\n\\nor simply reasonable strategic choices that did not pan out\\\"\\n\\nnormally can be answered only with the benefit of a developed\\n\\nrecord. United States v. Mercedes-De La Cruz, 787 F.3d 61, 66\\n\\n(1st Cir. 2015).\\n\\n To be sure, the Mala rule is not ironclad. On rare\\n\\noccasions, we have considered the merits of ineffective assistance\\n\\n\\n - 47 -\\n\\fof counsel claims raised for the first time on direct review. See,\\n\\ne.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).\\n\\nWe have limited this exception, though, to cases in which \\\"the\\n\\ncritical facts are not in dispute and the record is sufficiently\\n\\ndeveloped to allow reasoned consideration of the [ineffective\\n\\nassistance] claim.\\\" Mala, 7 F.3d at 1063.\\n\\n This case falls squarely within the general rule, not\\n\\nwithin the long-odds exception to it. The record is tenebrous as\\n\\nto critical issues, such as the content of the discovery (if any)\\n\\nFlete-Garcia received from trial counsel. Nor does the record\\n\\nindicate either why trial counsel elected not to cross-examine\\n\\nAdams or why he eschewed particular lines of inquiry when cross-\\n\\nexamining other government witnesses. There are both tactical and\\n\\nstrategic considerations that may have informed trial counsel's\\n\\ndecisions in this case, but the record sheds no light on trial\\n\\ncounsel's thinking. Consequently, the record does not tell us\\n\\nwhether trial counsel's decisions, when made, were calculated\\n\\nstratagems or amateurish blunders. Last — but far from least —\\n\\nthe record affords us no insight into what discussions took place\\n\\nbetween Flete-Garcia and his trial counsel regarding his decision\\n\\nto change his plea. Lacking a developed record that illuminates\\n\\nthese critical areas, we have no principled choice but to conclude\\n\\nthat the ineffective assistance of counsel claim is prematurely\\n\\nraised. See United States v. Miller, 911 F.3d 638, 646 (1st Cir.\\n\\n\\n - 48 -\\n\\f2018); United States v. Negrón-Narváez, 403 F.3d 33, 41 (1st Cir.\\n\\n2005). Accordingly, we dismiss the ineffective assistance of\\n\\ncounsel claim; without prejudice, however, to Flete-Garcia's\\n\\nright, if he so elects, to raise it through a petition for post-\\n\\nconviction relief under 28 U.S.C. § 2255.\\n\\nVI. CONCLUSION\\n\\n We need go no further.8 The record before us withstands\\n\\nFlete-Garcia's myriad claims of error. For aught that appears, he\\n\\nwas fairly tried, lawfully convicted, and appropriately sentenced\\n\\nin proceedings patiently conducted by an able trial judge.\\n\\nConsequently, we affirm the judgment of the district court; without\\n\\nprejudice, however, to Flete-Garcia's right to raise his\\n\\nineffective assistance of counsel claim in a collateral proceeding\\n\\npursuant to 28 U.S.C. § 2255.\\n\\n\\n\\nSo ordered.\\n\\n\\n\\n\\n 8On appeal, Flete-Garcia has adverted to some other issues.\\nWithout exception, those issues are insufficiently developed,\\nplainly without merit, or both. We see no need for extended\\ncomment but, rather, reject them out of hand.\\n\\n\\n - 49 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399974/\", \"author_raw\": \"SELYA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"KAYATTA"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"SELYA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622721/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Fulvio FLETE-GARCIA, A/K/A Fubio, A/K/A Israel Pagan Torres, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1067\n 18-1116\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n FULVIO FLETE-GARCIA,\n a/k/a Fubio, a/k/a Israel Pagan Torres,\n\n Defendant, Appellant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Leo T. Sorokin, U.S. District Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter,* Associate Justice,\n and Selya, Circuit Judge.\n\n\n Mark W. Shea, with whom Shea & LaRocque, LLP, was on brief,\nfor appellant.\n Yael T. Epstein, Attorney, Tax Division, Department of\nJustice, with whom Richard E. Zuckerman, Principal Deputy\nAssistant Attorney General, S. Roberts Lyons, Chief, Criminal\nAppeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr.\nand Alexander P. Robbins, Attorneys, Tax Division, and Andrew E.\nLelling, United States Attorney, were on brief, for appellee.\n\n\n\n* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the\nUnited States, sitting by designation.\n\fMay 23, 2019\n\f SELYA, Circuit Judge. Having identified defendant-\n\nappellant Fulvio Flete-Garcia as the architect of a massive\n\nswindle, the government charged him with a litany of fraud-based\n\ncrimes. Following four days of trial, Flete-Garcia threw in the\n\ntowel and entered a straight guilty plea to all 48 counts of the\n\nindictment. Prior to sentencing, though, Flete-Garcia experienced\n\nbuyer's remorse and attempted to withdraw his guilty plea. The\n\ndistrict court denied this motion, as well as sentencing-related\n\nmotions for discovery and for an evidentiary hearing. It then\n\nsentenced Flete-Garcia to 132 months' imprisonment and ordered him\n\nto make restitution in the amount of $7,737,486.10. Flete-Garcia\n\nappeals, raising a gallimaufry of alleged errors. Finding his\n\nasseverational array long on perfervid rhetoric but short on\n\nsubstance, we affirm.\n\nI. BACKGROUND\n\n We briefly rehearse the background of this appeal,\n\nreserving further elaboration for our subsequent discussion of the\n\nissues. We draw the facts from the trial record, the change-of-\n\nplea colloquy, the undisputed portions of the presentence\n\ninvestigation report (PSI Report), and the transcript of the\n\ndisposition hearing. See United States v. Arias-Mercedes, 901\n\nF.3d 1, 4 (1st Cir. 2018); United States v. Fernández-Santos, 856\n\nF.3d 10, 14 n.1 (1st Cir. 2017).\n\n\n\n\n - 3 -\n\f For over half a decade, Flete-Garcia orchestrated and\n\noperated a lucrative tax-fraud conspiracy. To further this\n\ncriminal enterprise, Flete-Garcia stole personal identification\n\ninformation (PII) from Puerto Rico residents and used this\n\ninformation to prepare and file fraudulent federal income tax\n\nreturns.1 These fraudulent returns generated refund checks, which\n\nFlete-Garcia deposited (through intermediaries) for his own\n\nbenefit.\n\n Flete-Garcia's scheme involved a handful of co-\n\nconspirators. One such co-conspirator assisted in the preparation\n\nof the fraudulent tax returns, while others assisted by cashing\n\nrefund checks. When a co-conspirator's accounts were frozen,\n\nFlete-Garcia simply moved on to another individual and another set\n\nof accounts.\n\n Flete-Garcia's scheme was nothing if not ambitious. In\n\nhindsight, the government says that it has been able to account\n\nfor over $7 million in funds fraudulently obtained from the\n\nInternal Revenue Service (IRS) as well as $5 million, more or less,\n\nthat would have been paid but for the detection of the fraud.\n\n\n\n\n 1 Residents of Puerto Rico are required to file federal income\ntax returns only if they earn taxable income outside Puerto Rico.\nSee 26 U.S.C. § 933(1). As a result, Puerto Rico residents were\nparticularly attractive targets for Flete-Garcia's scheme because\nthey were less likely to file authentic federal income tax returns.\n\n\n - 4 -\n\f The plucked chickens eventually came home to roost. On\n\nMarch 9, 2017, a federal grand jury sitting in the District of\n\nMassachusetts returned a 48 count superseding indictment charging\n\nFlete-Garcia with conspiracy to defraud the United States (count\n\n1), see 18 U.S.C. § 371; access device fraud (counts 2 and 3), see\n\nid. § 1029; conversion of government property (counts 4 through\n\n20), see id. § 641; aggravated identity theft (counts 21 through\n\n37), see id. § 1028A; and money laundering (counts 38 through 48),\n\nsee id. § 1956(a)(1)(B)(i). Flete-Garcia initially maintained his\n\ninnocence, a jury was empaneled, and trial commenced on July 10,\n\n2017. During the first four days of trial, the government\n\npresented the bulk of its evidence (including nineteen of twenty-\n\nthree witnesses), and Flete-Garcia cross-examined nearly all of\n\nthe government's witnesses. As the fourth day of trial wound down,\n\nFlete-Garcia indicated that he wished to change his plea. He told\n\nthe court that no one had pressured him into this decision but,\n\nrather, he had \"started thinking about [his] family.\"\n\n The district court engaged in a careful change-of-plea\n\ncolloquy, see Fed. R. Crim. P. 11, and Flete-Garcia admitted his\n\nguilt with respect to all 48 counts. Once the court accepted the\n\nplea, it discharged the jury.\n\n Shortly thereafter, Flete-Garcia retained new counsel.\n\nHe also wrote a pro se letter to the district court maintaining\n\nthat his trial was tainted and that he wanted to \"null[] or void\"\n\n\n - 5 -\n\fhis guilty plea. The court advised both Flete-Garcia and his new\n\nlawyer that it considered this letter to be without force and that\n\nany plea-withdrawal motion should be made by counsel. Relatedly,\n\nthe court postponed sentencing at Flete-Garcia's request.\n\n Flete-Garcia's new lawyer filed a flurry of motions.\n\nThese filings included a motion to withdraw Flete-Garcia's guilty\n\nplea, a motion to compel discovery, and a motion for an evidentiary\n\nhearing to determine the amount of loss. Meanwhile, the probation\n\noffice prepared the PSI Report, which (when issued) recommended\n\ncertain guideline calculations. The probation office began its\n\ncalculations by constituting a single group comprising counts 1\n\nthrough 20 and counts 38 through 48. See USSG §3D1.2(c), (d). It\n\nthen formed a second group comprising counts 21 through 37. See\n\nid. §2B1.6. Because the offense level for the money laundering\n\ncounts contained in the first group carried the highest offense\n\nlevel, the PSI Report calculated the guideline sentencing range\n\n(GSR) by reference to those counts. See id. §3D1.3(a). The\n\nensuing calculation started with a base offense level of 6, see\n\nid. §2B1.1, and added several enhancements. These included a\n\ntwenty-level enhancement for amount of loss, see id.\n\n§2B1.1(b)(1)(K); a two-level enhancement because the offenses of\n\nconviction involved more than ten victims, see id.\n\n§2B1.1(b)(2)(A)(i); a four-level enhancement for Flete-Garcia's\n\nleadership role, see id. §3B1.1(a); and a two-level enhancement\n\n\n - 6 -\n\fbecause the money laundering convictions implicated 18 U.S.C.\n\n§ 1956, see USSG §2S1.1(b)(2)(B). As an offset, the PSI Report\n\nrecommended a two-level reduction for acceptance of\n\nresponsibility. See id. §3E1.1(a).\n\n These calculations yielded a total offense level of 32\n\nwhich, coupled with a criminal history category of III, produced\n\na GSR of 151-188 months. To complete the picture, the PSI Report\n\nrecommended restitution in the amount of $7,737,486.10.\n\n Flete-Garcia objected to many aspects of the PSI Report,\n\nincluding (as pertinent here) the enhancements for number of\n\nvictims and amount of loss. He also objected to the restitution\n\namount.\n\n On December 18, 2017, the district court denied Flete-\n\nGarcia's motion for an evidentiary hearing concerning amount of\n\nloss. Two days later, the court convened the disposition hearing.\n\nAt that time, it heard and denied Flete-Garcia's remaining motions,\n\nincluding his motion to withdraw his guilty plea and his motion to\n\ncompel discovery. The court also heard and rejected Flete-Garcia's\n\nrenewed arguments as to why an evidentiary hearing would be useful\n\nin determining amount of loss.\n\n The district court then turned to the task of fashioning\n\nFlete-Garcia's sentence. After entertaining additional arguments\n\nfrom both sides, the court accepted most of the guideline\n\ncalculations limned in the PSI Report. The court, however,\n\n\n - 7 -\n\fsustained the government's objection and ruled that Flete-Garcia\n\n— who had only pleaded guilty near the end of the trial and\n\nthereafter had sought to unbuckle himself from his guilty plea —\n\nwas not entitled to an offense-level reduction for acceptance of\n\nresponsibility.\n\n The district court proceeded to sentence Flete-Garcia to\n\na downwardly variant 132-month term of immurement and ordered him\n\nto make restitution in the amount of $7,737,486.10. This timely\n\nappeal followed. In it, Flete-Garcia calumnizes his conviction\n\nand sentence on several fronts. We start with his claim that he\n\nshould have been allowed to withdraw his guilty plea. Next, we\n\ndeal with his claims of sentencing-related error (including those\n\narising out of the denial of his motions for discovery and for an\n\nevidentiary hearing). We then treat with his attack on the\n\nrestitution order and end with his ineffective assistance of\n\ncounsel claim.\n\nII. WITHDRAWAL OF GUILTY PLEA\n\n Because Flete-Garcia's motion to withdraw his guilty\n\nplea was filed before the imposition of sentence, it is governed\n\nby Federal Rule of Criminal Procedure 11(d)(2)(B). Under this\n\nrule, \"[a] defendant may withdraw a plea of guilty . . . after the\n\ncourt accepts the plea, but before it imposes sentence if . . .\n\nthe defendant can show a fair and just reason\" for its withdrawal.\n\nDespite its permissive nature, this standard \"does not endow [a\n\n\n - 8 -\n\fdefendant] with an unfettered right to retract a guilty plea.\"\n\nUnited States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). The\n\ndevoir of persuasion rests with the movant, and we review the\n\ndistrict court's denial of such a motion solely for abuse of\n\ndiscretion. See id.\n\n A court's scrutiny of a plea-withdrawal motion must take\n\ninto account the totality of the relevant circumstances. See id.;\n\nsee also United States v. Caramadre, 807 F.3d 359, 366 (1st Cir.\n\n2015). This canvass includes consideration of whether the plea\n\nwas voluntary, intelligent, and knowing when tendered; the\n\nstrength of the reason(s) proffered in support of the motion to\n\nwithdraw; the timing of the request; and the force of any claim of\n\nactual innocence. See United States v. Dunfee, 821 F.3d 120, 127\n\n(1st Cir. 2016) (per curiam); Merritt, 755 F.3d at 9. If the\n\ndefendant makes a prima facie showing of an entitlement to relief,\n\nthe court must then factor into the decisional calculus the\n\nprejudice, if any, that may accrue to the government as a result\n\nof allowing the plea to be withdrawn. See Merritt, 755 F.3d at 9.\n\n In the district court — as here — Flete-Garcia complained\n\nthat his guilty plea was neither intelligent nor knowing because\n\n\"he did not understand many of the important aspects of the Rule\n\n11 hearing.\" The district court rejected this conclusory plaint,\n\nfinding that the plea was suitably informed and not the product of\n\nany coercion. In the court's view, it was manifest that Flete-\n\n\n - 9 -\n\fGarcia had fully considered the decision to change his plea,\n\nunderstood the nature and scope of his plea, and had not made the\n\ndecision in the heat of the moment. Moreover, Flete-Garcia's\n\nproffered reason for withdrawing his plea was weak, especially\n\nsince his decision to plead was reached after hearing the bulk of\n\nthe government's evidence and an outline of the proof that\n\nremained. See Fernández-Santos, 856 F.3d at 16-17. Finally, the\n\ncourt noted that Flete-Garcia had made no claim of actual\n\ninnocence.\n\n Flete-Garcia asserts that the district court's refusal\n\nto allow him to retract his guilty plea was an abuse of discretion\n\nbecause he was confused about the factual basis for counts 2 and\n\n3 — and the district court compounded his confusion by\n\n\"constrain[ing]\" him to \"short yes or no answers.\" This assertion\n\nis belied by the record. The transcript of the Rule 11 hearing\n\nmakes pellucid that even though Flete-Garcia's responses to some\n\nof the district court's questions warranted further inquiry, the\n\ncourt conducted just such an inquiry. It patiently explained and\n\nre-explained the nature of the offenses to which Flete-Garcia was\n\npleading and recounted the implications that would follow.\n\n An example illustrates the district court's approach.\n\nWhen the court asked Flete-Garcia whether he agreed to the factual\n\nbasis for counts 2 and 3 (specifically, that he had possession of\n\ntwo lists of stolen PII), Flete-Garcia replied that he did not\n\n\n - 10 -\n\f\"know where [the government] got that from.\" In response, the\n\ncourt reminded Flete-Garcia that he did not have to plead guilty,\n\nthat he could elect to resume the trial, and that he had the option\n\nof pleading guilty to some charges and continuing to contest the\n\nothers. The court also restated the charges that Flete-Garcia had\n\nquestioned (counts 2 and 3) and summarized the evidence\n\nunderpinning those charges. At that point, Flete-Garcia\n\nreaffirmed his desire to plead guilty and admitted to the factual\n\nbasis for all of the charges.\n\n In the last analysis, Rule 11 requires a district court\n\nto ensure that the defendant both knows and understands the nature\n\nof the charges to which he is pleading. See Fed. R. Crim. P.\n\n11(b)(1)(G). This does not mean, though, that Rule 11 is off the\n\ntable simply because a defendant indicates some uncertainty about\n\nthe factual basis for a proposed guilty plea. Where, as here, the\n\ncourt resolves such uncertainties to the defendant's expressed\n\nsatisfaction through clarification and explanation, a guilty plea\n\nmay qualify as voluntary, intelligent, and knowing. See United\n\nStates v. Ramos-Mejía, 721 F.3d 12, 15 (1st Cir. 2013).\n\n This is such a case, and Flete-Garcia offers no plausible\n\nbasis for concluding that he did not fully understand the charges\n\nagainst him.2 At any rate, all indications are to the contrary:\n\n\n 2In the district court, Flete-Garcia attempted to bolster\nhis argument by submitting a letter from a neuropsychologist\n\n\n - 11 -\n\fhe was present during jury selection and nearly four full days of\n\ntrial, heard the prosecutor's opening statement and the testimony\n\nof nineteen of the government's twenty-three witnesses (including\n\nsome who testified about the stolen PII), and listened as the\n\nprosecutor summarized the remaining evidence at the Rule 11\n\nhearing. Additionally, the district court explained all of the\n\ncharges to Flete-Garcia as well as the consequences of changing\n\nhis plea.\n\n We find hollow Flete-Garcia's protestation that he felt\n\nconstrained by the district court to respond with yes or no\n\nanswers. To be sure, the district court kept a rather tight rein\n\non the colloquy — a commendable practice given that an empaneled\n\njury was being held in limbo. But the court did no more than was\n\nreasonably necessary to keep the proceedings on track, and we\n\ndiscern no error in its management of the Rule 11 hearing. Viewed\n\nobjectively, the court's dialogue with Flete-Garcia adroitly\n\nbalanced its obligation to ensure that the plea was voluntary,\n\nknowing, and intelligent against the need for the fair and orderly\n\nadministration of the Rule 11 hearing.\n\n\n\nsuggesting that he may have had \"situational anxiety,\" potentially\nimpacting his understanding of what was transpiring in the Rule 11\nhearing. Before us, Flete-Garcia mentions this letter in passing\nbut makes no developed argumentation predicated on it.\nConsequently, we deem the point abandoned. See United States v.\nZannino, 895 F.2d 1, 17 (1st Cir. 1990) (\"[I]ssues adverted to in\na perfunctory manner, unaccompanied by some effort at developed\nargumentation, are deemed waived.\").\n\n\n - 12 -\n\f The short of it is that here, as in Dunfee, Flete-Garcia\n\n\"affirmatively declared under oath at a properly conducted Rule 11\n\nhearing that he was guilty of the crimes with which he was\n\ncharged.\" 821 F.3d at 128. In the absence of any plausible basis\n\nfor discounting them, the district court was \"entitled to give\n\nweight to the defendant's statements at his change-of-plea\n\ncolloquy.\" United States v. Santiago Miranda, 654 F.3d 130, 138\n\n(1st Cir. 2011). On this record, we discern nothing approaching\n\nan abuse of discretion in the district court's determination that\n\nFlete-Garcia had failed to show a fair and just reason for\n\nwithdrawing his plea.3\n\nIII. CERTAIN SENTENCING RELATED MATTERS\n\n Flete-Garcia offers up a salmagundi of claims relating\n\nto certain matters adjudicated in connection with the sentencing\n\nhearing. We subdivide our discussion of these claims into discrete\n\nsegments.\n\n A. Enhancement for Number of Victims.\n\n We start with Flete-Garcia's challenge to the district\n\ncourt's application of a two-level enhancement for crimes\n\ninvolving ten or more victims. See USSG §2B1.1(b)(2)(A)(i). For\n\nthis purpose, a victim is described as \"any individual whose means\n\n\n 3 To the extent that Flete-Garcia claims that his guilty plea\nwas involuntary due to ineffective assistance of counsel, we\naddress that claim in conjunction with his other ineffective\nassistance claims. See infra Part V.\n\n\n - 13 -\n\fof identification was used unlawfully or without authority.\" Id.\n\n§2B1.1, app. n.4(E)(ii). Because Flete-Garcia preserved this\n\nclaim of error below, we review the district court's factual\n\nfindings for clear error and its application of the law (including\n\nits application of the sentencing guidelines) de novo. See United\n\nStates v. Carbajal-Váldez, 874 F.3d 778, 782-83 (1st Cir. 2017),\n\ncert. denied, 138 S. Ct. 2586 (2018); United States v. Nuñez, 852\n\nF.3d 141, 144 (1st Cir. 2017).\n\n We have made pellucid that \"[c]lear error is not an\n\nappellant-friendly standard.\" Carbajal-Váldez, 874 F.3d at 783.\n\nThis demanding standard is satisfied only when, \"upon whole-\n\nrecord-review, an inquiring court 'form[s] a strong, unyielding\n\nbelief that a mistake has been made.'\" Nuñez, 852 F.3d at 144\n\n(alteration in original) (quoting United States v. Cintrón-\n\nEchautegui, 604 F.3d 1, 6 (1st Cir. 2010)). If two plausible but\n\ncompeting inferences may be drawn from particular facts, a\n\nsentencing court's choice between those two competing inferences\n\ncannot be clearly erroneous. See id. at 146; United States v.\n\nRuiz, 905 F.2d 499, 508 (1st Cir. 1990).\n\n It is by now familiar lore that the government bears the\n\nburden of proving the applicability of a sentencing enhancement.\n\nSee United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).\n\n\"It must carry this burden by a preponderance of the evidence.\"\n\nId.\n\n\n - 14 -\n\f In this instance, it is nose-on-the-face plain that more\n\nthan ten people were affected by Flete-Garcia's scheme. After\n\nall, Flete-Garcia stole PII relating to hundreds of individuals,\n\nused the stolen PII corruptly, and pleaded guilty to no fewer than\n\nseventeen counts of aggravated identity theft. Undaunted by these\n\nironclad facts, Flete-Garcia rests his claim of error on language\n\nin the sentencing guidelines. With respect to aggravated identity\n\ntheft, the guidelines link the term of immurement to the statute\n\nof conviction. See USSG §2B1.6(a). In this case, the statute\n\nrequires a mandatory two-year term for a defendant who \"knowingly\n\ntransfers, possesses, or uses, without lawful authority, a means\n\nof identification of another person.\" 18 U.S.C. § 1028A.\n\n But there is a rub: an application note instructs that\n\n\"[i]f a sentence . . . is imposed in conjunction with a sentence\n\nfor an underlying offense,\" the sentencing court should \"not apply\n\nany specific offense characteristic for the transfer, possession,\n\nor use of a means of identification\" in fashioning the sentence\n\nfor the underlying offense. USSG §2B1.6, app. n.2. In other\n\nwords, the application note prohibits the enhancement of a sentence\n\nfor the same conduct (the transfer, possession, or use of a means\n\nof identification) that is captured by the statute.\n\n Flete-Garcia asserts that the number of victims\n\nenhancement violates the letter (or at least the spirit) of the\n\napplication note. We do not agree. Even though we have recognized\n\n\n - 15 -\n\fthat the prohibition contained in section 2B1.6 may preclude some\n\nenhancements germane to the underlying offense, see United States\n\nv. Jones, 551 F.3d 19, 25 (1st Cir. 2008), Flete-Garcia's assertion\n\nis unfounded.\n\n The key is whether the proposed enhancement relates to\n\na characteristic of the offense. See United States v. Sharapka,\n\n526 F.3d 58, 62 (1st Cir. 2008). If so, it is precluded. See id.\n\nOtherwise, it is not precluded. See id. Flete-Garcia submits\n\nthat the number of victims enhancement falls into the category of\n\nprohibited enhancements because the sole reason for its\n\napplication was that he used a means of identification to\n\nperpetrate his crimes. Flete-Garcia, however, takes too myopic a\n\nview.\n\n Here, the number of victims enhancement does not punish\n\nhim simply for using a means of identification but, rather,\n\npunishes him for the breadth of his criminality, that is, for using\n\nthe means of identification of ten or more individuals in the\n\ncourse of his criminal activity.\n\n Section 2B1.6 prohibits an enhancement that is based on\n\nthe nature of the offense (transferring, possessing, or using a\n\nmeans of identification). See USSG §2B1.6, app. n.2; see also\n\nSharapka, 526 F.3d at 62. The guideline provision, though, is\n\nsilent as to an enhancement based on the breadth of the offense.\n\nSee United States v. Gonzales, 844 F.3d 929, 932 (10th Cir. 2016)\n\n\n - 16 -\n\f(observing that application note 2 prohibits an enhancement based\n\non nature of crime but not one \"based on the extent of such a\n\ncrime\" (emphasis in original)). In the case at hand, the number\n\nof victims enhancement plainly has its genesis in the breadth of\n\nFlete-Garcia's criminal activity. That is an appropriate use of\n\nthe enhancement. See id. at 933 (explaining that enhancement\n\naccomplishes task of treating \"criminal conduct more seriously as\n\nthe number of stolen identities increases\"). Such an\n\ninterpretation is consistent with the structure of the enhancement\n\nitself, which ratchets up as the number of victims and the extent\n\nof the impact on them increases. Compare, e.g., USSG\n\n§2B1.1(b)(2)(A)(i) (increasing offense level by two for ten or\n\nmore victims), with, e.g., id. §2B1.1(b)(2)(C) (increasing offense\n\nlevel by six for substantial financial hardship to twenty-five or\n\nmore victims).\n\n So, too, the district court's application of the\n\nenhancement is consistent with the text of 18 U.S.C. § 1028A.\n\nWhile a conviction for aggravated identity theft mandates a two-\n\nyear sentence, the statute does not factor the number of victims\n\ninto the calculus of punishment.\n\n Our view of the application note aligns us with our\n\nsister circuits. All of the circuits that have considered the\n\nmatter have rejected claims of sentencing error similar to the\n\nclaim that Flete-Garcia advances. See, e.g., Gonzales, 844 F.3d\n\n\n - 17 -\n\fat 932-33; United States v. Ford, 784 F.3d 1386, 1397-98 (11th\n\nCir. 2015); United States v. Anderson, 532 F. App'x 373, 378 (4th\n\nCir. 2013); United States v. Lyles, 506 F. App'x 440, 447 (6th\n\nCir. 2012); United States v. Yummi, 408 F. App'x 537, 541 (3d Cir.\n\n2010). By the same token, it fits comfortably with our earlier\n\ncases considering the interplay between other enhancements and\n\nUSSG §2B1.6. See, e.g., Jones, 551 F.3d at 25; (considering\n\ninterplay between sections 2B1.1(b)(10)(B) and 2B1.6); Sharapka,\n\n526 F.3d at 62 (considering interplay between sections\n\n2B1.1(b)(10)(A)(i), (C)(i) and 2B1.6).\n\n We conclude that the statute and the guideline\n\nprovision, read together, present no barrier to the application of\n\nthe number of victims enhancement in this case. As applied here,\n\nthe enhancement punished Flete-Garcia for the overall breadth of\n\nhis criminal activity — a factor not captured by the statute of\n\nconviction and, thus, not foreclosed by application note 2.\n\n That ends this aspect of the matter. Because we hold\n\nthat the district court did not clearly err in imposing a two-\n\nlevel enhancement for the presence of ten or more victims, Flete-\n\nGarcia's claim of error founders.\n\n B. Enhancement for Amount of Loss.\n\n Flete-Garcia posits that the district court erred in\n\ncalculating the amount of loss attributable to the offenses of\n\nconviction. In this regard, he notes that the district court\n\n\n - 18 -\n\faccepted the government's calculation of both the amounts refunded\n\non fraudulent tax-return claims and the amounts sought (though not\n\npaid) on other fraudulent refund claims. In a nutshell, he argues\n\nthat these loss calculations were errant: they were based on the\n\nflawed testimony of witnesses, unreliable information, and unsound\n\nauditing methods.\n\n We begin with bedrock. \"In a fraud case resulting in\n\nfinancial loss, the defendant's guideline sentencing range is\n\ndetermined in part\" by the amount of loss. United States v.\n\nNaphaeng, 906 F.3d 173, 179 (1st Cir. 2018), cert. denied, 139 S.\n\nCt. 1233 (2019). For this purpose, \"loss is the greater of actual\n\nloss or intended loss.\" USSG §2B1.1, app. n.3(A). Since intended\n\nloss normally subsumes actual loss, intended loss is often the\n\ngreater of the two. So it is here,4 and intended loss is defined\n\nas \"the pecuniary harm that the defendant purposely sought to\n\ninflict,\" whether or not achievable. Id. §2B1.1, app. n.3(A)(ii).\n\n The government must prove the amount of loss by a\n\npreponderance of the evidence. See United States v. Curran, 525\n\nF.3d 74, 78 (1st Cir. 2008). In arriving at a loss figure, a\n\nsentencing court is free to consider both losses stemming directly\n\nfrom the conduct underlying the offenses of conviction and losses\n\n\n 4 The PSI Report recognized the encompassing nature of the\n\"intended loss\" rubric and distinguished between the two types of\nloss calculated by the government as money that was claimed and\npaid versus money that was claimed but blocked.\n\n\n - 19 -\n\fstemming from any relevant conduct (including uncharged conduct).\n\nSee id.; United States v. Ranney, 298 F.3d 74, 80-81 (1st Cir.\n\n2002); United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).\n\n The sentencing court has considerable discretion in\n\ndetermining what evidence should be regarded as reliable in making\n\nfindings as to the amount of loss. See Sklar, 920 F.2d at 110.\n\nSuch evidence may come from \"virtually any dependable [source of]\n\ninformation.\" Id. It is common ground that a sentencing court's\n\nloss calculations are entitled to \"appropriate deference,\" given\n\nthe court's \"unique position to assess the evidence and estimate\n\nthe loss based upon that evidence.\" USSG §2B1.1, app. n.3(C).\n\nSimilarly, \"credibility determinations lie within the domain of\n\nthe district court,\" and \"[o]nly rarely — and in the most urgent\n\ncircumstances — will we, from the vista of a sterile appellate\n\nrecord, meddle in such matters.\" United States v. St. Cyr, 977\n\nF.2d 698, 706 (1st Cir. 1992).\n\n We add, moreover, that a loss calculation need not be\n\nprecise: the sentencing court need only make a reasonable estimate\n\nof the range of loss. See Curran, 525 F.3d at 78. This latitude\n\ncomports with the way in which amount of loss relates to a\n\ndefendant's sentence: the extent of the \"loss\" enhancement\n\ncorresponds to a range of loss amounts. See USSG §2B1.1(b)(1).\n\nHere, the district court's loss calculation totaled approximately\n\n$12.7 million, leaving a cushion of more than $3 million over the\n\n\n - 20 -\n\fminimum amount ($9.5 million) needed to trigger the twenty-level\n\nenhancement. See id. §2B1.1(b)(1)(K), (L) (directing twenty-level\n\nenhancement for loss exceeding $9.5 million and up to $25 million).\n\nThus, the same enhancement results whether the loss falls at the\n\nbottom of the range, at the top of the range, or somewhere in the\n\nmiddle.\n\n Flete-Garcia pleaded guilty to converting seventeen\n\nparticular tax-refund checks (totaling $125,756) for his own use.\n\nAt sentencing, the government contended that this was the tip of\n\nthe iceberg, and that it constituted a mere fraction of the overall\n\nharm wrought by Flete-Garcia. The district court agreed: it was\n\n\"satisfied\" that \"$7.7 million in checks\" had been \"paid out\" by\n\nthe IRS in response to fraudulent returns instigated by Flete-\n\nGarcia. The court was also satisfied that approximately $5 million\n\nin \"blocked\" refunds (that is, refunds claimed but not paid)\n\nqualified as intended loss. In making these findings, the court\n\ncredited the trial testimony of Flete-Garcia's co-conspirators and\n\na testifying IRS agent, stating that it believed the witnesses'\n\ndescriptions of the scheme and accepted the IRS agent's method of\n\ncalculating the losses stemming from that scheme.\n\n In reviewing these determinations, we start by taking a\n\ncloser look at the $7.7 million in losses stemming from fraudulent\n\ntax-refund claims actually paid out by the IRS. To cash the checks\n\nthat he received, Flete-Garcia engaged a pair of co-conspirators,\n\n\n - 21 -\n\fCarmen Guzman and Rocio Dominguez (both of whom operated businesses\n\nthat provided check-cashing services). Guzman and Dominguez\n\ntestified that they began handling checks for Flete-Garcia in 2007\n\nand 2009, respectively. Flete-Garcia's arrangements with the two\n\nwomen were similar: he would give tax-refund checks to one of\n\nthem, she would deposit the checks in one of her accounts, and\n\nwould then give Flete-Garcia a sum equal to the aggregate face\n\namount of the checks, less an agreed \"cut.\" Flete-Garcia did not\n\nappear as a named payee on any of the stacks of checks (sometimes\n\nas many as forty at a time) that he delivered to Guzman and\n\nDominguez. Guzman testified that she never took a fraudulent tax-\n\nrefund check from anyone other than Flete-Garcia. Dominguez,\n\nthough, testified that she accepted fraudulent tax-refund checks\n\nnot only from Flete-Garcia but also from another fraudster. She\n\nadded that she could \"count . . . in [her] hand\" the total number\n\nof fraudulent checks she received from this other fraudster.\n\n According to both Guzman and Dominguez, their complicity\n\nin Flete-Garcia's scheme continued until their accounts were\n\nfrozen (in or around 2012). The freezing of these accounts did\n\nnot deter Flete-Garcia: he simply recruited a third check-cashing\n\nco-conspirator, Dubin Gonzalez-Pabon (Gonzalez). Gonzalez\n\ntestified that he, along with another person, picked up tax-refund\n\nchecks from Flete-Garcia at a barbershop and gave Flete-Garcia the\n\nbulk of the proceeds. At the same time, Gonzalez was involved in\n\n\n - 22 -\n\fanother tax-fraud racket (which the PSI Report classified as a\n\n\"related case\").\n\n In preparation for trial, an IRS agent, Tuan Nguyen,\n\nsurveyed all of the co-conspirators' bank accounts for evidence of\n\ndeposited tax-refund checks. While Flete-Garcia's guilty plea\n\npretermitted Nguyen's scheduled trial testimony, Nguyen\n\nnonetheless identified approximately 1,400 fraudulently obtained\n\nchecks and catalogued them in summary charts submitted at\n\nsentencing. These summary charts identified approximately $7.7\n\nmillion in monies actually paid out by the IRS in the form of\n\nfraudulently obtained tax-refund checks — and each check\n\ncorresponded to a tax return actually filed.\n\n At sentencing, Flete-Garcia assailed the government's\n\nloss calculations by pointing to purported anomalies in the\n\nevidence. In his view, these anomalies compelled the conclusion\n\nthat \"much of the data and documents used by the Government and\n\nthe Probation Office were flawed and contained information that\n\ndid not support the loss figures.\" Moreover, he argued that \"the\n\nchecks could not have been printed and sent from the U.S. Treasury\n\nin the manner described by the Government.\"\n\n The district court considered all of Flete-Garcia's\n\narguments. In the end, the court had no difficulty in attributing\n\nthe claimed $7.7 million in actual loss to Flete-Garcia. The court\n\ncredited the government's explanation of Nguyen's methodology and\n\n\n - 23 -\n\fsupportedly found his summary charts reliable. Noting that checks\n\nidentified by the government \"match[ed] tax returns that were\n\nactually filed with the IRS,\" the court concluded that the actual\n\nloss figure — $7.7 million — was \"real money, actually paid\" by\n\nthe IRS and was attributable to Flete-Garcia. In reaching this\n\nconclusion, the court deemed it highly significant that the monies\n\npaid out were traceable to checks in the co-conspirators' accounts.\n\nAs the court put it, \"[t]hat's what those witnesses said\" and \"I\n\nbelieved them.\"\n\n The record makes manifest that the district court did\n\nnot blindly accept the government's reconstruction of the\n\npertinent events. To the contrary, the court gave due\n\nconsideration to Flete-Garcia's compendium of purported\n\nevidentiary anomalies. The court observed that Flete-Garcia\n\nraised \"some things around the margin,\" but found that none of the\n\nmatters mentioned by Flete-Garcia shook its faith in the\n\ncredibility of the government's witnesses.\n\n In this venue, Flete-Garcia argues that the district\n\ncourt's findings were riddled with error. He continues to insist\n\nthat the evidence on which the district court relied was faulty\n\nbecause, among other things, the checks (or at least some of them)\n\nwere altered; the mailing addresses for some checks did not match\n\nthe government's theory of the case; multiple checks were sometimes\n\nissued for the same taxpayer in a single tax year; the amounts of\n\n\n - 24 -\n\fa few refund checks were not entirely congruent with the underlying\n\ntax returns; the checks cashed with Dominguez's help were not\n\naltogether consistent with her testimony; and the government\n\nfailed to offer any co-conspirator testimony pertaining to e-tax\n\nreturns. These arguments, though multifarious, boil down to — in\n\nhis words — an all-out assault on \"the reliability of the\n\ncooperating witnesses, as well as the documentary evidence.\"\n\n But for the most part, Flete-Garcia is firing blanks.\n\nTo begin, his arguments give unduly short shrift to \"the time-\n\ntested tenet that 'credibility determinations are part of the\n\nsentencing court's basic armamentarium.'\" United States v.\n\nBernier, 660 F.3d 543, 546 (1st Cir. 2011) (quoting United States\n\nv. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)). We will overturn\n\nsuch determinations \"only if we have a definite and firm conviction\n\nthat a mistake has been committed,\" id. (quoting United States v.\n\nGonzález-Vélez, 587 F.3d 494, 504 (1st Cir. 2009)), and the record\n\nin this case gives rise to nothing resembling such a conviction.\n\nAfter all, \"the sentencing judge presided over the trial and was\n\nin an enviable position to gauge [the witnesses'] credibility and\n\nto separate wheat from chaff.\" Id. Flete-Garcia has identified\n\nnothing that leads us to believe that \"a reasonable factfinder\n\nwould not credit\" the government's witnesses and evidence.\n\nAnderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).\n\n\n\n\n - 25 -\n\f It would serve no useful purpose to dissect Flete-\n\nGarcia's wide-ranging critique, epithet by epithet. A few\n\nexamples, though, will help to illustrate why those criticisms are\n\nnowhere near as potent as Flete-Garcia would have us believe.\n\n Flete-Garcia asserts that Dominguez testified that she\n\nwrote by hand on every check that he gave her after she verified\n\nthat it was really an IRS tax-refund check and, thus, the checks\n\nin evidence from her accounts (which were devoid of her\n\nhandwriting) were unreliable. But Flete-Garcia is painting with\n\ntoo broad a brush: Dominguez testified that she followed this\n\npractice only \"in the beginning\" of her criminal partnership with\n\nFlete-Garcia. Her testimony further suggested that her business\n\npractices evolved in response to the burgeoning volume of checks\n\nthat he delivered, thus paving the way for a reasonable inference\n\nthat Dominguez had abandoned the time-consuming practice of\n\nverifying each check by the time the government's investigation\n\ncommenced.\n\n Another example makes a similar point. Flete-Garcia\n\nharps on the fact that the government's charts included some\n\ninstances of multiple refund checks issued for the same social\n\nsecurity number in the same year. He complains that the government\n\noffered no explanation for how this phenomenon could have occurred\n\nwhen the IRS screens for duplicate social security numbers. But\n\nas one of the government's witnesses explained, a refund check\n\n\n - 26 -\n\fcould get issued for a bogus social security number if the error\n\nwas \"not accounted for in time.\" We think that this testimony,\n\nalthough specifically referencing fictitious social security\n\nnumbers rather than duplications, is sufficient to ground a\n\nreasonable inference that fraud detection is not always automatic.\n\nSo viewed, the presence of duplicate social security numbers did\n\nnot render the government's charts wholly unreliable.\n\n A third example deals with Flete-Garcia's complaint\n\nabout the government's failure to offer particularized evidence\n\nabout e-tax returns. Although the government's exhibits did\n\ninclude some e-tax returns, nothing in the record furnishes a basis\n\nfor a founded claim that some special sort of proof was required\n\nwith respect to those returns. The testimony that the government\n\noffered to validate the exhibits perforce validate the e-tax\n\nreturns as well.\n\n To sum up, the district court had wide discretion to\n\n\"evaluate virtually any dependable information\" and determine the\n\nprobative value of such information with respect to issues material\n\nto sentencing. United States v. Bradley, 917 F.2d 601, 605 (1st\n\nCir. 1990). Although some of the discrepancies identified by\n\nFlete-Garcia might plausibly suggest problems with a few of the\n\nitems on which the district court relied, such an inference was by\n\nno means compelled. And as we have said, \"when there are two\n\nplausible views of the record, the sentencing court's adoption of\n\n\n - 27 -\n\fone such view cannot be clearly erroneous.\" St. Cyr, 977 F.2d at\n\n706. We conclude, therefore, that the district court's finding of\n\n$7.7 million in losses actually paid was not clearly erroneous.\n\n This brings us to the approximately $5 million in\n\nintended loss attributed to \"blocked\" refunds. The facts\n\nundergirding this finding came largely from the testimony of yet\n\nanother co-conspirator: Juan Santiago. Santiago recalled that\n\nFlete-Garcia gave him a computer, the PII, a list of addresses,\n\nand a list of employer identification numbers. Santiago then was\n\ninstructed how to plug this information into tax-preparation\n\nsoftware and how to prepare tagalong W-2 forms (ostensibly issued\n\nby \"any number of companies\"). He worked his part of the scheme\n\nover the course of several years, but on two occasions sold PII to\n\na person who turned out to be a government cooperator.\n\n With the lists of PII in evidence, an IRS agent, Richard\n\nAdams, described the methodology that he used to identify\n\nfraudulently filed tax-refund claims deriving from these lists.\n\nIn general terms, Adams compared each filed tax return\n\ncorresponding to a name in the PII to independent information\n\nobtained from an IRS database. When he spotted a mismatch, he\n\nclassified the return as fraudulent. He then prepared summary\n\ncharts, which catalogued approximately $5 million in bogus\n\n\"blocked\" claims.\n\n\n\n\n - 28 -\n\f The sentencing court was intimately familiar with this\n\ntestimony: it not only presided over the trial but also presided\n\nover the change-of-plea hearing (at which Flete-Garcia admitted\n\nhis guilt with respect to, inter alia, access device fraud arising\n\nout of his possession of the two lists of PII). The court made an\n\nexpress finding that Santiago \"was a truthful witness.\" Similarly,\n\nit found Adams' methodology (and, thus, his summary charts)\n\nreliable.\n\n Even so, the court fretted over whether all $5 million\n\ncould fairly be attributed to Flete-Garcia given that Santiago had\n\nadmitted to doing some \"freelancing.\" In the end, though, the\n\ncourt accepted the government's explanation that Santiago's\n\nfreelancing was limited to the sale of the lists of PII and of\n\nchecks not attributable to Flete-Garcia. Relatedly, the court\n\nfound that Santiago consistently used the lists to advance Flete-\n\nGarcia's scheme by \"prepar[ing] returns that were rejected by the\n\nIRS.\" Given these findings — and taking into account that the\n\ngovernment had not attributed all the losses from Santiago's\n\nactivities to Flete-Garcia — the court concluded that the\n\ngovernment had carried its burden of proving by preponderant\n\nevidence an intended loss of $5 million referable to the \"blocked\"\n\nrefunds.\n\n Flete-Garcia tries to sidestep this hurdle, taking issue\n\nwith both Santiago's veracity and the related amount of loss. To\n\n\n - 29 -\n\fbolster his arguments, he points out that the summary charts\n\ncontain addresses across the United States. He says that when\n\nSantiago sold the PII, he did not sell the accompanying list of\n\naddresses and, in any event, the geographic diversity of addresses\n\ncontradicts Santiago's testimony that the tax refunds obtained\n\nwere mostly directed to post office boxes in Massachusetts and\n\nLouisiana. He adds that the W-2 forms reflected putative employers\n\ndifferent than those identified by Santiago.\n\n These arguments lack force. Santiago's testimony, found\n\ncredible by the district court, forges a direct link between Flete-\n\nGarcia and the PII. To seal the deal, the record shows with\n\nconspicuous clarity that the IRS used the PII from the lists —\n\nlists that Flete-Garcia pleaded guilty to possessing — to identify\n\nthe suspect tax returns. While Santiago admitted to freelancing,\n\nthe court reasonably credited the government's explanation that\n\nSantiago's separate activities were not included in the loss\n\ncalculation performed for Flete-Garcia. Viewing the record as a\n\nwhole, the sentencing court had more than enough reliable\n\ninformation to ground its finding, by a preponderance of the\n\nevidence, that the $5 million loss was attributable to Flete-\n\nGarcia.\n\n We add a coda. In this case, the sentencing court was\n\noperating with a substantial cushion. The court found the\n\naggregate amount of loss to be approximately $12.7 million, even\n\n\n - 30 -\n\fthough all that was needed to justify the twenty-level enhancement\n\nwas a loss amount of $9.5 million. It follows that Flete-Garcia\n\ncannot demonstrate reversible error with respect to the amount-\n\nof-loss enhancement simply by nibbling around the edges of the\n\ndistrict court's findings: he must persuade us that at least $3.2\n\nmillion of the loss attributed to him by the court was the product\n\nof clear error. We are not so persuaded.\n\n Mathematics is an exact science. Engineering is an exact\n\nscience. But calculating amount of loss under the sentencing\n\nguidelines is far from an exact science. In fraud cases, amount\n\nof loss is meant to be a proxy for the harm (both actual and\n\nintended) inflicted by the fraudster's nefarious activities. All\n\nthat is required is a reasonable estimate of the amount of loss.\n\nSee Curran, 525 F.3d at 78. Here, the district court's findings,\n\nwhich spell out how and why the amount of loss attributable to\n\nFlete-Garcia comfortably exceed the $9.5 million threshold, easily\n\npass muster. Clear error is clearly absent.\n\n C. Discovery.\n\n Three days before his scheduled sentencing, Flete-Garcia\n\nmoved to compel production of materials regarding the IRS agent,\n\nJamie Clarke, who had overseen his case. Flete-Garcia averred\n\nthat, after he had pleaded guilty, Clarke was the subject of an\n\nassault allegation reported in the Boston Globe and that everything\n\n\n\n\n - 31 -\n\fpertaining to the allegation was material to his case. The\n\ngovernment opposed the motion, and the district court denied it.\n\n We review the denial of a motion to compel discovery in\n\na criminal case for abuse of discretion. See United States v.\n\nCaro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005). Typically, the\n\ngovernment is obliged \"to disclose evidence in its possession that\n\nis favorable to the accused and material to guilt or punishment.\"\n\nUnited States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011)\n\n(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). To prevail on\n\na motion to compel, the defendant must show a likelihood of\n\nprejudice stemming from the government's nondisclosure. See\n\nUnited States v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir.\n\n1999). Thus, when a criminal defendant seeks discovery, he must\n\n\"be able to articulate with some specificity what evidence he hopes\n\nto find in the requested materials, why he thinks the materials\n\ncontain this evidence, and finally, why this evidence would be\n\nboth favorable to him and material.\" Prochilo, 629 F.3d at 269.5\n\n\n 5 The parties have treated the denial of Flete-Garcia's motion\nto compel discovery as a matter controlled by the Supreme Court's\nwatershed opinion in Brady, 373 U.S. at 87. The fit is not perfect:\nit is not clear that Brady entitles a defendant to evidence at\nsentencing when that evidence relates exclusively to a matter that\noccurred after the completion of the trial. Here, however, we\nneed not pursue this question. \"The animating principle of Brady\nis the 'avoidance of an unfair trial,'\" United States v. Mathur,\n624 F.3d 498, 506 (1st Cir. 2010) (quoting Brady, 373 U.S. at 87),\nand the parties regarded Brady as controlling. We therefore\nassume, without deciding, that Brady is the beacon by which we\nmust steer.\n\n\n - 32 -\n\f Clarke did not testify at Flete-Garcia's trial.\n\nNevertheless, Flete-Garcia says that the requested information was\n\nmaterial because Clarke was present at trial, answered some\n\nquestions for the district court (out of the jury's earshot),\n\nserved as the lead case agent, and had access to all of the\n\ninformation that the government used to calculate the loss amounts.\n\n The district court denied Flete-Garcia's motion,\n\ndetermining that the government's investigation of Clarke was\n\nirrelevant and immaterial because that investigation did not bear\n\non Flete-Garcia's case. The court noted that Clarke neither\n\ncompiled the summary charts that reflected the loss computations\n\nnor testified at trial. And the assault allegation — though\n\nserious — was wholly unrelated to Flete-Garcia's case.\n\n The government concedes that Flete-Garcia's lawyer spoke\n\nwith the prosecutor before sentencing and asked for \"all\n\ninformation regarding prior complaints against Special Agent\n\nClarke and all information regarding the current investigation of\n\nSpecial Agent Clarke.\" Thus, the question reduces to whether the\n\ndistrict court abused its discretion in failing to find that the\n\nrequested information was likely to be both favorable to Flete-\n\nGarcia and material to his case.\n\n We discern no abuse of discretion in the district court's\n\ndenial of the motion to compel discovery. Flete-Garcia submits\n\nthat \"the allegations against . . . Clarke indicate a life\n\n\n - 33 -\n\funraveling\" and that (given the other questions raised about the\n\nreliability of the government's evidence) \"the integrity of the\n\nagent who was responsible for that evidence is material.\" But the\n\nallegation against Clarke was simply that: a bare allegation.\n\nMore importantly, Flete-Garcia's quest for discovery had all the\n\nearmarks of an old-fashioned fishing expedition. He never\n\nexplained — apart from rank speculation — how information about\n\nthat allegation might have altered the course of the sentencing\n\nproceeding or otherwise affected his case. Where, as here, a\n\ngovernment agent is alleged to have committed misconduct unrelated\n\nto an earlier investigation that he supervised, such an allegation,\n\nwithout more, does not render the earlier investigation suspect.\n\nCf. United States v. Nelson-Rodriguez, 319 F.3d 12, 35 (1st Cir.\n\n2003) (finding no Brady violation when \"government failed to\n\nproduce . . . prior investigations which contained allegations\n\nthat [confidential informant] was involved in . . . murders\"\n\nbecause his \"alleged role in [those] murders was a collateral\n\nmatter\").\n\n To say more on this point would be to paint the lily. A\n\ndefendant ordinarily must make some showing of prejudice before an\n\nappellate court will step in and overrule a district court's\n\nreasoned decision to deny discovery, see Rosario-Peralta, 199 F.3d\n\nat 559, and Flete-Garcia has made no such showing here. Flete-\n\nGarcia's theory of materiality is based entirely on conjecture\n\n\n - 34 -\n\fand, in such circumstances, a district court's refusal to compel\n\nproduction of requested information is not an abuse of discretion.\n\nSee United States v. Goris, 876 F.3d 40, 45 (1st Cir. 2017), cert.\n\ndenied, 138 S. Ct. 2011 (2018).\n\n D. Evidentiary Hearing.\n\n At sentencing, Flete-Garcia moved for an evidentiary\n\nhearing, suggesting that one was needed to reconcile the parties'\n\ncompeting narratives about the amount of loss. The district court\n\ndenied his motion, and Flete-Garcia assigns error.\n\n A criminal defendant, facing the imposition of sentence,\n\nis not entitled to an evidentiary hearing on demand. See United\n\nStates v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987) (explaining\n\nthat \"hearings cannot be convened at the whim of a suitor, made\n\navailable like popsicles in July, just because a passerby would\n\nlike to have one\"). The decision as to whether to hold such a\n\nhearing \"is left to the sound discretion of the district court.\"\n\nUnited States v. Brown, 621 F.3d 48, 57 (1st Cir. 2010). At\n\nsentencing, evidentiary hearings are the exception, not the rule\n\n— and an order denying an evidentiary hearing is reviewed only for\n\nabuse of discretion. See United States v. Shattuck, 961 F.2d 1012,\n\n1014-15 (1st Cir. 1992).\n\n In gauging the need for an evidentiary hearing, we\n\nconsider whether the defendant made \"a sufficient threshold\n\nshowing that material facts [were] in doubt or in dispute.\" United\n\n\n - 35 -\n\fStates v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993) (quoting\n\nUnited States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)).\n\nBefore the district court, Flete-Garcia claimed that a hearing was\n\nneeded because \"the evidence in this case does not line up with\n\nthe sworn testimony, and there are evidentiary anomalies that do\n\nnot comport with the [g]overnment's claims at trial.\" In his view,\n\n\"[w]itnesses need[ed] to be subjected to cross-examination on the\n\ncritical problems with the evidence that underlies the loss\n\ncalculation.\"\n\n The district court disagreed, denying the motion and\n\nholding that Flete-Garcia did \"not identif[y] disputed issues of\n\nmaterial fact.\" The court noted, however, that it would be open\n\nto reconsidering its decision depending on what transpired at the\n\ndisposition hearing.\n\n During the disposition hearing, Flete-Garcia once again\n\ntried to convince the district court of the desirability of an\n\nevidentiary hearing. He emphasized the evidentiary anomalies to\n\nwhich he earlier had referred by, for example, pointing to some\n\ninstances in which there was a mismatch between the issue date and\n\nthe deposit date of particular checks. The district court\n\nacknowledged that the date discrepancy was a \"fair point[],\" but\n\nconcluded that no additional testimony was necessary because \"the\n\nvast majority, if not all of\" the dates matched.\n\n\n\n\n - 36 -\n\f On appeal, Flete-Garcia maintains that there were \"clear\n\nproblems with the evidence\" and that, without a hearing, he was\n\n\"hamstrung in exploring these problems.\" In support, he relies on\n\na guideline provision instructing that \"the parties shall be given\n\nan adequate opportunity to present information to the court\"\n\nregarding a factor that is \"reasonably in dispute.\" USSG\n\n§6A1.3(a).\n\n Flete-Garcia's reliance on section 6A1.3 is mislaid. In\n\nterms, this provision is meant to ensure that, at sentencing, a\n\ndefendant is \"given an adequate opportunity\" to be heard. United\n\nStates v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989) (quoting USSG\n\n§6A1.3(a)). But an \"adequate opportunity\" is not always synonymous\n\nwith an evidentiary hearing, see id., and Flete-Garcia had a more-\n\nthan-adequate opportunity to be heard and to question the evidence\n\ngermane to sentencing.\n\n For one thing, much of the evidence relating to loss was\n\npresented at trial, and Flete-Garcia had the opportunity to cross-\n\nexamine the witnesses who presented it (including Adams, Guzman,\n\nDominguez, Gonzalez, and Santiago). For another thing, Flete-\n\nGarcia's counsel was able to argue extensively at the disposition\n\nhearing about perceived problems with the government's evidence.\n\nIn the circumstances of this case, no more was exigible to satisfy\n\nthe \"adequate opportunity\" requirement.\n\n\n\n\n - 37 -\n\f We acknowledge that some of the questions raised by\n\nFlete-Garcia were nuanced. But in McAndrews, we recognized that\n\n\"we have consistently abjured mandatory evidentiary hearings in a\n\nwide variety of . . . delicate [and] nuanced situations.\" 12 F.3d\n\nat 279. Here, the \"evidentiary anomalies\" mentioned by Flete-\n\nGarcia dealt mainly with peripheral matters and did not cast any\n\nsignificant shadow over the government's proof. Moreover, the\n\ndistrict court was in an excellent position to weigh these alleged\n\nanomalies and gauge their import even without an evidentiary\n\nhearing. As we previously have noted, the district court had\n\npresided over the trial and was intimately familiar with the\n\nevidence before it. We must, therefore, accord substantial\n\ndeference to its determination that an evidentiary hearing would\n\nnot have been productive. See id. at 280; Shattuck, 961 F.2d at\n\n1015; cf. United States v. Cannons Eng'g Corp., 899 F.2d 79, 94\n\n(1st Cir. 1990) (warning that \"[d]istrict courts are busy places\n\nand makework hearings are to be avoided\"). Giving the district\n\ncourt its due, we discern no abuse of the court's broad discretion\n\nin its denial of Flete-Garcia's motion for an evidentiary hearing.\n\n E. The Due Process Claim.\n\n Flete-Garcia asserts, for the first time on appeal, that\n\nhis due process rights were violated by the district court's\n\n\n\n\n - 38 -\n\freliance on false and misleading evidence.6 \"The plain error\n\nhurdle is high.\" United States v. Hunnewell, 891 F.2d 955, 956\n\n(1st Cir. 1989). To prevail under plain error review, an appellant\n\nmust show \"(1) that an error occurred (2) which was clear or\n\nobvious and which not only (3) affected the defendant's substantial\n\nrights, but also (4) seriously impaired the fairness, integrity,\n\nor public reputation of judicial proceedings.\" United States v.\n\nDuarte, 246 F.3d 56, 60 (1st Cir. 2001).\n\n The Due Process Clause protects a defendant by, inter\n\nalia, safeguarding against a sentence predicated on information\n\nthat is \"false or materially incorrect.\" United States v. Curran,\n\n926 F.2d 59, 61 (1st Cir. 1991). We have cautioned, however, that\n\n\"the due process right at sentencing is not as robust as the due\n\nprocess right at trial.\" United States v. Stile, 845 F.3d 425,\n\n430 (1st Cir. 2017). Even so, \"due process . . . requires that\n\nthe defendant be given an adequate opportunity to refute\n\ninformation relied on at sentencing.\" Id. (quoting United States\n\nv. Wilfred Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir. 1992)).\n\n\n\n\n 6Flete-Garcia suggests that this argument is not new, noting\nthat he contended at sentencing that some of the government's\nevidence was unreliable. The fly in the ointment, though, is that\nFlete-Garcia did not so much as suggest that the district court's\nreliance on this evidence might violate due process. It follows\nthat no due process claim was preserved. See Zannino, 895 F.2d at\n17; see also Clauson v. Smith, 823 F.2d 660, 665-66 (1st Cir. 1987)\n(concluding that new legal interpretations of factual record\n\"cannot be surfaced for the first time on appeal\").\n\n\n - 39 -\n\fRelatedly, due process demands that a sentencing court \"consider\n\nall the available evidence, including conflicting evidence\" to\n\n\"assure itself that a piece of proof is sufficiently reliable.\"\n\nUnited States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993).\n\n Here, Flete-Garcia was unquestionably on fair notice of\n\nall of the facts that the government deemed relevant to the\n\nimposition of sentence. Cf. United States v. Berzon 941 F.2d 8,\n\n19-20 (1st Cir. 1991) (holding that due process requires that\n\ndefendant be given fair notice of conduct and facts that will\n\ninform the sentencing court's determinations). Many of them had\n\nbeen explored during the nearly four days of trial, and others had\n\nsurfaced either at the Rule 11 hearing or in the PSI Report. Some\n\nof these facts may have been arguable, but none of them was plainly\n\nfalse. Moreover, Flete-Garcia was given wide latitude in his\n\nattempts to poke holes in the government's factual mosaic, and he\n\nwas able to develop his argument that some other fraud, independent\n\nof his own criminality, was afoot.\n\n For aught that appears, Flete-Garcia received all the\n\nprocess that was due. His claim of error therefore stumbles at\n\nthe first step of the plain error inquiry.\n\nIV. RESTITUTION\n\n Flete-Garcia's next plaint builds on one of his earlier\n\nplaints. He points to arguments that he marshalled in reproving\n\nthe sentencing court's findings with respect to amount of loss,\n\n\n - 40 -\n\fsee supra Part III(B), and asserts that those arguments \"make clear\n\nthat the . . . restitution order is flawed.\" This bareboned\n\nassertion does not get him very far.\n\n The district court imposed the restitution order\n\npursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.\n\n§ 3663A. \"[T]he MVRA mandates that a defendant convicted of\n\ncertain federal crimes, including those 'committed by fraud or\n\ndeceit,' must make restitution to victims commensurate with . . .\n\nactual losses.\" Naphaeng, 906 F.3d at 179 (quoting 18 U.S.C.\n\n§ 3663A(c)(1)(A)(ii)). Although restitution typically bears a\n\nrelationship to amount of loss, the two are conceptually distinct.\n\nIn fraud cases, the amount of loss is an integer in the sentencing\n\ncalculus: it is computed in order to establish the defendant's\n\noffense level and, thus, his GSR. Viewed in context, then, amount\n\nof loss is \"the primary metric by which 'the seriousness of the\n\noffense and the defendant's relative culpability' are measured.\"\n\nUnited States v. Alphas, 785 F.3d 775, 782 (1st Cir. 2015) (quoting\n\nUSSG §2B1.1, cmt. (bckg'd)).\n\n Restitution is a horse of a different hue, serving a\n\nwholly different purpose. It \"is designed to compensate the\n\nvictim, not to punish the offender.\" Naphaeng, 906 F.3d at 179.\n\nMoreover, restitution deals exclusively with losses actually\n\nsustained and (unlike amount of loss calculations) makes no\n\nprovision for intended loss. See Alphas, 785 F.3d at 786. To\n\n\n - 41 -\n\fthat end, the MVRA directs that restitution shall be made \"to each\n\nvictim in the full amount of each victim's losses as determined by\n\nthe court.\" 18 U.S.C. § 3664(f)(1)(A). And whereas loss\n\ncalculations require only a reasonable estimate of the range of\n\nloss, see Curran, 525 F.3d at 78, the entire amount of restitution\n\nmust be supported — albeit only by \"a modicum of reliable\n\nevidence,\" United States v. Vaknin, 112 F.3d 579, 587 (1st Cir.\n\n1997).\n\n We generally review preserved challenges to restitution\n\norders for abuse of discretion. See Naphaeng, 906 F.3d at 179.\n\nUnpreserved challenges are, at best, reviewed for plain error.\n\nSee United States v. Sánchez-Maldonado, 737 F.3d 826, 828 (1st\n\nCir. 2013). Here, Flete-Garcia objected to the restitution section\n\nin the PSI Report, but he did not renew this objection either in\n\nhis sentencing memorandum or at the disposition hearing. We thus\n\ntreat his challenge to the restitution order as forfeited and\n\nreview it only for plain error.7 See Duarte, 246 F.3d at 60.\n\n Flete-Garcia's argument with respect to restitution is\n\nnebulous. His opening brief contends, in conclusory terms, that\n\n\n 7The government insists that Flete-Garcia waived his\nchallenge to the restitution order \"by remaining silent during the\nsentencing hearing\" and, thus, that his claim of error is\nunreviewable. See United States v. Rodriguez, 311 F.3d 435, 437\n(1st Cir. 2002) (distinguishing between waived challenges and\nforfeited challenges). We assume, favorably to Flete-Garcia, that\nhis objection to the restitution order was merely forfeited, not\nwaived.\n\n\n - 42 -\n\f\"[t]he problems\" he had identified with respect to the government's\n\nloss calculations \"make clear that the evidence relied upon by the\n\n[district] court for the restitution order is flawed and thus\n\ninsufficient to support the restitution order.\" His reply brief\n\nreiterates that \"the loss figure [is] incorrect\" and that \"[t]he\n\nloss calculation is what drove the restitution amount.\" In effect,\n\nthen, he tries to copy and paste his loss-calculation arguments —\n\narguments that we already have rejected, see supra Part III(B) —\n\nin support of his restitution claim. He offers nothing that\n\nindicates an awareness of the differing criteria for loss\n\ncalculations and restitution calculations, nor does he attempt to\n\ntailor his amount of loss arguments to the restitution context.\n\nAt the end of the day, Flete-Garcia has left \"the court to do\n\ncounsel's work, create the ossature for the argument, and put flesh\n\non its bones.\" United States v. Zannino, 895 F.2d 1, 17 (1st Cir.\n\n1990).\n\n Flete-Garcia's failure to tailor his arguments to the\n\nrestitution context drains them of any force. As we have\n\nexplained, there are significant differences between the proper\n\nmethod of calculating loss and the proper method of calculating\n\nrestitution — a fact that is made starkly apparent by the\n\nsubstantial dollar differential between the district court's loss\n\ncalculation (approximately $12.7 million) and its restitution\n\naward (approximately $7.7 million). Flete-Garcia could have\n\n\n - 43 -\n\fshaped his restitution argument accordingly. For example, he could\n\nhave argued (perhaps successfully) that the handful of checks\n\nDominguez admitted to cashing for another individual could not be\n\nincluded in computing the restitution order because that other\n\nfraudster's victims were not \"directly and proximately harmed\" by\n\nFlete-Garcia's malefactions. 18 U.S.C. § 3663A(a)(2). But Flete-\n\nGarcia did not advance that argument, either in the district court\n\nor on appeal, much less make any attempt to quantify the monetary\n\nvalue of the handful of checks. Given his default, there is no\n\nreason why we should make such an argument for him. See Zannino,\n\n895 F.2d at 17 (warning that \"a litigant has an obligation 'to\n\nspell out its arguments squarely and distinctly,' or else forever\n\nhold its peace\" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631,\n\n635 (1st Cir. 1988))); cf. Paterson-Leitch Co., Inc. v. Mass. Mun.\n\nWholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988) (\"Courts,\n\nlike the Deity, are most frequently moved to help those who help\n\nthemselves.\").\n\n Cognizant that a \"court's calculation of restitution is\n\nnot held to standards of scientific precision,\" Sánchez-Maldonado,\n\n737 F.3d at 828, we discern no plain error in the district court's\n\nrestitution order. The government introduced testimony from\n\nmultiple witnesses and detailed charts substantiating the $7.7\n\nmillion paid out by the IRS. The charts delineated particular\n\namounts of money, actually expended, based on each co-\n\n\n - 44 -\n\fconspirator's bank records. The district court concluded that\n\nthis evidence laid a solid foundation for its restitution order.\n\n In the circumstances of this case, the standard of review\n\nis dispositive. As said, Flete-Garcia's challenges to the\n\nrestitution order are reviewable only for plain error — and \"[t]he\n\nproponent of plain error must carry the devoir of persuasion as to\n\neach of the four elements that collectively comprise the plain\n\nerror standard.\" United States v. Bramley, 847 F.3d 1, 5 (1st\n\nCir. 2017). Even if we assume for the sake of argument that there\n\nmay have been some error (perhaps an obvious error) in the district\n\ncourt's restitution calculation, Flete-Garcia has made no argument\n\nregarding the extent to which any such error affected that\n\ncalculation. He has not shown, for example, that the restitution\n\norder is off-target by, say, $100,000, or $50,000, or $5. Instead,\n\nhe makes generalized allegations that inaccuracies permeate the\n\nrestitution order — and he leaves it to us to do the juridical\n\nequivalent of an archeological dig and monetize his allegations.\n\n We have admonished before that parties act at their peril\n\nin leaving \"the court to do counsel's work,\" Zannino, 895 F.2d at\n\n17, and we are reluctant to reward such tactics. The third element\n\nof the plain error inquiry requires that an appellant demonstrate\n\n\"a reasonable probability that, but for the error, the outcome\n\nwould have been different.\" Bramley, 847 F.3d at 7. Flete-Garcia\n\nhas made no such demonstration but, rather, leaves us to work out\n\n\n - 45 -\n\fhow the claimed errors — even if they apply in the restitution\n\ncontext — may affect the amount of restitution that the district\n\ncourt ordered. This causal approach to appellate advocacy —\n\nthrowing generalized scraps of information on the table and hoping\n\nthat the panel will make a meal of them — falls well short of what\n\nthe third element of plain error demands.\n\n Given Flete-Garcia's utter failure to carry his burden\n\nwith respect to the third element of the plain error inquiry, the\n\nfourth element also cuts against him. We think it evident that\n\nthe claimed errors, if left uncorrected, will not \"seriously\n\nimpair[] the fairness, integrity, or public reputation of judicial\n\nproceedings.\" Duarte, 246 F.3d at 60.\n\n The short of it is that we find no plain error.\n\nTherefore, we affirm the district court's restitution order.\n\nV. INEFFECTIVE ASSISTANCE OF COUNSEL\n\n In a final attempt to improve his lot, Flete-Garcia\n\ninsists that the representation provided by his trial counsel was\n\nineffective. See U.S. Const. amend. VI; see also Strickland v.\n\nWashington, 466 U.S. 668, 687 (1984). He offers vignettes\n\nillustrating his counsel's allegedly deficient performance —\n\nignoring him, withholding discovery materials from him, and\n\nfailing to make certain inquiries when cross-examining witnesses\n\n— and says that, as a result of this feckless representation, he\n\nfelt that he had no plausible alternative but to plead guilty.\n\n\n - 46 -\n\fThis claim of error was never adjudicated in the district court:\n\nalthough Flete-Garcia made disparaging remarks about his trial\n\ncounsel's shortcomings and suggested that ineffective assistance\n\ncontributed to his decision to plead guilty, he never advanced a\n\nSixth Amendment claim. Consequently, no effort was made to develop\n\na record suitable for the adjudication of such a claim.\n\n \"We have held with a regularity bordering on the\n\nmonotonous that fact-specific claims of ineffective assistance of\n\ncounsel cannot make their debut on direct review of criminal\n\nconvictions, but, rather, must originally be presented to, and\n\nacted upon by, the trial court.\" United States v. Mala, 7 F.3d\n\n1058, 1063 (1st Cir. 1933). \"In adopting this prudential praxis,\n\nwe have reasoned that 'such claims typically require the resolution\n\nof factual issues that cannot efficaciously be addressed in the\n\nfirst instance by an appellate tribunal.'\" United States v.\n\nSantana-Dones, 920 F.3d 70, 82 (1st Cir. 2019) (quoting Mala, 7\n\nF.3d at 1063). In particular, \"questions about whether counsel's\n\nchallenged decisions were mistakes of a constitutional magnitude\n\nor simply reasonable strategic choices that did not pan out\"\n\nnormally can be answered only with the benefit of a developed\n\nrecord. United States v. Mercedes-De La Cruz, 787 F.3d 61, 66\n\n(1st Cir. 2015).\n\n To be sure, the Mala rule is not ironclad. On rare\n\noccasions, we have considered the merits of ineffective assistance\n\n\n - 47 -\n\fof counsel claims raised for the first time on direct review. See,\n\ne.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).\n\nWe have limited this exception, though, to cases in which \"the\n\ncritical facts are not in dispute and the record is sufficiently\n\ndeveloped to allow reasoned consideration of the [ineffective\n\nassistance] claim.\" Mala, 7 F.3d at 1063.\n\n This case falls squarely within the general rule, not\n\nwithin the long-odds exception to it. The record is tenebrous as\n\nto critical issues, such as the content of the discovery (if any)\n\nFlete-Garcia received from trial counsel. Nor does the record\n\nindicate either why trial counsel elected not to cross-examine\n\nAdams or why he eschewed particular lines of inquiry when cross-\n\nexamining other government witnesses. There are both tactical and\n\nstrategic considerations that may have informed trial counsel's\n\ndecisions in this case, but the record sheds no light on trial\n\ncounsel's thinking. Consequently, the record does not tell us\n\nwhether trial counsel's decisions, when made, were calculated\n\nstratagems or amateurish blunders. Last — but far from least —\n\nthe record affords us no insight into what discussions took place\n\nbetween Flete-Garcia and his trial counsel regarding his decision\n\nto change his plea. Lacking a developed record that illuminates\n\nthese critical areas, we have no principled choice but to conclude\n\nthat the ineffective assistance of counsel claim is prematurely\n\nraised. See United States v. Miller, 911 F.3d 638, 646 (1st Cir.\n\n\n - 48 -\n\f2018); United States v. Negrón-Narváez, 403 F.3d 33, 41 (1st Cir.\n\n2005). Accordingly, we dismiss the ineffective assistance of\n\ncounsel claim; without prejudice, however, to Flete-Garcia's\n\nright, if he so elects, to raise it through a petition for post-\n\nconviction relief under 28 U.S.C. § 2255.\n\nVI. CONCLUSION\n\n We need go no further.8 The record before us withstands\n\nFlete-Garcia's myriad claims of error. For aught that appears, he\n\nwas fairly tried, lawfully convicted, and appropriately sentenced\n\nin proceedings patiently conducted by an able trial judge.\n\nConsequently, we affirm the judgment of the district court; without\n\nprejudice, however, to Flete-Garcia's right to raise his\n\nineffective assistance of counsel claim in a collateral proceeding\n\npursuant to 28 U.S.C. § 2255.\n\n\n\nSo ordered.\n\n\n\n\n 8On appeal, Flete-Garcia has adverted to some other issues.\nWithout exception, those issues are insufficiently developed,\nplainly without merit, or both. We see no need for extended\ncomment but, rather, reject them out of hand.\n\n\n - 49 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Fulvio FLETE-GARCIA, A/K/A Fubio, A/K/A Israel Pagan Torres, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-1067\\n 18-1116\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n FULVIO FLETE-GARCIA,\\n a/k/a Fubio, a/k/a Israel Pagan Torres,\\n\\n Defendant, Appellant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Leo T. Sorokin, U.S. District Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter,* Associate Justice,\\n and Selya, Circuit Judge.\\n\\n\\n Mark W. Shea, with whom Shea & LaRocque, LLP, was on brief,\\nfor appellant.\\n Yael T. Epstein, Attorney, Tax Division, Department of\\nJustice, with whom Richard E. Zuckerman, Principal Deputy\\nAssistant Attorney General, S. Roberts Lyons, Chief, Criminal\\nAppeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr.\\nand Alexander P. Robbins, Attorneys, Tax Division, and Andrew E.\\nLelling, United States Attorney, were on brief, for appellee.\\n\\n\\n\\n* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the\\nUnited States, sitting by designation.\\n\\fMay 23, 2019\\n\\f SELYA, Circuit Judge. Having identified defendant-\\n\\nappellant Fulvio Flete-Garcia as the architect of a massive\\n\\nswindle, the government charged him with a litany of fraud-based\\n\\ncrimes. Following four days of trial, Flete-Garcia threw in the\\n\\ntowel and entered a straight guilty plea to all 48 counts of the\\n\\nindictment. Prior to sentencing, though, Flete-Garcia experienced\\n\\nbuyer's remorse and attempted to withdraw his guilty plea. The\\n\\ndistrict court denied this motion, as well as sentencing-related\\n\\nmotions for discovery and for an evidentiary hearing. It then\\n\\nsentenced Flete-Garcia to 132 months' imprisonment and ordered him\\n\\nto make restitution in the amount of $7,737,486.10. Flete-Garcia\\n\\nappeals, raising a gallimaufry of alleged errors. Finding his\\n\\nasseverational array long on perfervid rhetoric but short on\\n\\nsubstance, we affirm.\\n\\nI. BACKGROUND\\n\\n We briefly rehearse the background of this appeal,\\n\\nreserving further elaboration for our subsequent discussion of the\\n\\nissues. We draw the facts from the trial record, the change-of-\\n\\nplea colloquy, the undisputed portions of the presentence\\n\\ninvestigation report (PSI Report), and the transcript of the\\n\\ndisposition hearing. See United States v. Arias-Mercedes, 901\\n\\nF.3d 1, 4 (1st Cir. 2018); United States v. Fernández-Santos, 856\\n\\nF.3d 10, 14 n.1 (1st Cir. 2017).\\n\\n\\n\\n\\n - 3 -\\n\\f For over half a decade, Flete-Garcia orchestrated and\\n\\noperated a lucrative tax-fraud conspiracy. To further this\\n\\ncriminal enterprise, Flete-Garcia stole personal identification\\n\\ninformation (PII) from Puerto Rico residents and used this\\n\\ninformation to prepare and file fraudulent federal income tax\\n\\nreturns.1 These fraudulent returns generated refund checks, which\\n\\nFlete-Garcia deposited (through intermediaries) for his own\\n\\nbenefit.\\n\\n Flete-Garcia's scheme involved a handful of co-\\n\\nconspirators. One such co-conspirator assisted in the preparation\\n\\nof the fraudulent tax returns, while others assisted by cashing\\n\\nrefund checks. When a co-conspirator's accounts were frozen,\\n\\nFlete-Garcia simply moved on to another individual and another set\\n\\nof accounts.\\n\\n Flete-Garcia's scheme was nothing if not ambitious. In\\n\\nhindsight, the government says that it has been able to account\\n\\nfor over $7 million in funds fraudulently obtained from the\\n\\nInternal Revenue Service (IRS) as well as $5 million, more or less,\\n\\nthat would have been paid but for the detection of the fraud.\\n\\n\\n\\n\\n 1 Residents of Puerto Rico are required to file federal income\\ntax returns only if they earn taxable income outside Puerto Rico.\\nSee 26 U.S.C. § 933(1). As a result, Puerto Rico residents were\\nparticularly attractive targets for Flete-Garcia's scheme because\\nthey were less likely to file authentic federal income tax returns.\\n\\n\\n - 4 -\\n\\f The plucked chickens eventually came home to roost. On\\n\\nMarch 9, 2017, a federal grand jury sitting in the District of\\n\\nMassachusetts returned a 48 count superseding indictment charging\\n\\nFlete-Garcia with conspiracy to defraud the United States (count\\n\\n1), see 18 U.S.C. § 371; access device fraud (counts 2 and 3), see\\n\\nid. § 1029; conversion of government property (counts 4 through\\n\\n20), see id. § 641; aggravated identity theft (counts 21 through\\n\\n37), see id. § 1028A; and money laundering (counts 38 through 48),\\n\\nsee id. § 1956(a)(1)(B)(i). Flete-Garcia initially maintained his\\n\\ninnocence, a jury was empaneled, and trial commenced on July 10,\\n\\n2017. During the first four days of trial, the government\\n\\npresented the bulk of its evidence (including nineteen of twenty-\\n\\nthree witnesses), and Flete-Garcia cross-examined nearly all of\\n\\nthe government's witnesses. As the fourth day of trial wound down,\\n\\nFlete-Garcia indicated that he wished to change his plea. He told\\n\\nthe court that no one had pressured him into this decision but,\\n\\nrather, he had \\\"started thinking about [his] family.\\\"\\n\\n The district court engaged in a careful change-of-plea\\n\\ncolloquy, see Fed. R. Crim. P. 11, and Flete-Garcia admitted his\\n\\nguilt with respect to all 48 counts. Once the court accepted the\\n\\nplea, it discharged the jury.\\n\\n Shortly thereafter, Flete-Garcia retained new counsel.\\n\\nHe also wrote a pro se letter to the district court maintaining\\n\\nthat his trial was tainted and that he wanted to \\\"null[] or void\\\"\\n\\n\\n - 5 -\\n\\fhis guilty plea. The court advised both Flete-Garcia and his new\\n\\nlawyer that it considered this letter to be without force and that\\n\\nany plea-withdrawal motion should be made by counsel. Relatedly,\\n\\nthe court postponed sentencing at Flete-Garcia's request.\\n\\n Flete-Garcia's new lawyer filed a flurry of motions.\\n\\nThese filings included a motion to withdraw Flete-Garcia's guilty\\n\\nplea, a motion to compel discovery, and a motion for an evidentiary\\n\\nhearing to determine the amount of loss. Meanwhile, the probation\\n\\noffice prepared the PSI Report, which (when issued) recommended\\n\\ncertain guideline calculations. The probation office began its\\n\\ncalculations by constituting a single group comprising counts 1\\n\\nthrough 20 and counts 38 through 48. See USSG §3D1.2(c), (d). It\\n\\nthen formed a second group comprising counts 21 through 37. See\\n\\nid. §2B1.6. Because the offense level for the money laundering\\n\\ncounts contained in the first group carried the highest offense\\n\\nlevel, the PSI Report calculated the guideline sentencing range\\n\\n(GSR) by reference to those counts. See id. §3D1.3(a). The\\n\\nensuing calculation started with a base offense level of 6, see\\n\\nid. §2B1.1, and added several enhancements. These included a\\n\\ntwenty-level enhancement for amount of loss, see id.\\n\\n§2B1.1(b)(1)(K); a two-level enhancement because the offenses of\\n\\nconviction involved more than ten victims, see id.\\n\\n§2B1.1(b)(2)(A)(i); a four-level enhancement for Flete-Garcia's\\n\\nleadership role, see id. §3B1.1(a); and a two-level enhancement\\n\\n\\n - 6 -\\n\\fbecause the money laundering convictions implicated 18 U.S.C.\\n\\n§ 1956, see USSG §2S1.1(b)(2)(B). As an offset, the PSI Report\\n\\nrecommended a two-level reduction for acceptance of\\n\\nresponsibility. See id. §3E1.1(a).\\n\\n These calculations yielded a total offense level of 32\\n\\nwhich, coupled with a criminal history category of III, produced\\n\\na GSR of 151-188 months. To complete the picture, the PSI Report\\n\\nrecommended restitution in the amount of $7,737,486.10.\\n\\n Flete-Garcia objected to many aspects of the PSI Report,\\n\\nincluding (as pertinent here) the enhancements for number of\\n\\nvictims and amount of loss. He also objected to the restitution\\n\\namount.\\n\\n On December 18, 2017, the district court denied Flete-\\n\\nGarcia's motion for an evidentiary hearing concerning amount of\\n\\nloss. Two days later, the court convened the disposition hearing.\\n\\nAt that time, it heard and denied Flete-Garcia's remaining motions,\\n\\nincluding his motion to withdraw his guilty plea and his motion to\\n\\ncompel discovery. The court also heard and rejected Flete-Garcia's\\n\\nrenewed arguments as to why an evidentiary hearing would be useful\\n\\nin determining amount of loss.\\n\\n The district court then turned to the task of fashioning\\n\\nFlete-Garcia's sentence. After entertaining additional arguments\\n\\nfrom both sides, the court accepted most of the guideline\\n\\ncalculations limned in the PSI Report. The court, however,\\n\\n\\n - 7 -\\n\\fsustained the government's objection and ruled that Flete-Garcia\\n\\n— who had only pleaded guilty near the end of the trial and\\n\\nthereafter had sought to unbuckle himself from his guilty plea —\\n\\nwas not entitled to an offense-level reduction for acceptance of\\n\\nresponsibility.\\n\\n The district court proceeded to sentence Flete-Garcia to\\n\\na downwardly variant 132-month term of immurement and ordered him\\n\\nto make restitution in the amount of $7,737,486.10. This timely\\n\\nappeal followed. In it, Flete-Garcia calumnizes his conviction\\n\\nand sentence on several fronts. We start with his claim that he\\n\\nshould have been allowed to withdraw his guilty plea. Next, we\\n\\ndeal with his claims of sentencing-related error (including those\\n\\narising out of the denial of his motions for discovery and for an\\n\\nevidentiary hearing). We then treat with his attack on the\\n\\nrestitution order and end with his ineffective assistance of\\n\\ncounsel claim.\\n\\nII. WITHDRAWAL OF GUILTY PLEA\\n\\n Because Flete-Garcia's motion to withdraw his guilty\\n\\nplea was filed before the imposition of sentence, it is governed\\n\\nby Federal Rule of Criminal Procedure 11(d)(2)(B). Under this\\n\\nrule, \\\"[a] defendant may withdraw a plea of guilty . . . after the\\n\\ncourt accepts the plea, but before it imposes sentence if . . .\\n\\nthe defendant can show a fair and just reason\\\" for its withdrawal.\\n\\nDespite its permissive nature, this standard \\\"does not endow [a\\n\\n\\n - 8 -\\n\\fdefendant] with an unfettered right to retract a guilty plea.\\\"\\n\\nUnited States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). The\\n\\ndevoir of persuasion rests with the movant, and we review the\\n\\ndistrict court's denial of such a motion solely for abuse of\\n\\ndiscretion. See id.\\n\\n A court's scrutiny of a plea-withdrawal motion must take\\n\\ninto account the totality of the relevant circumstances. See id.;\\n\\nsee also United States v. Caramadre, 807 F.3d 359, 366 (1st Cir.\\n\\n2015). This canvass includes consideration of whether the plea\\n\\nwas voluntary, intelligent, and knowing when tendered; the\\n\\nstrength of the reason(s) proffered in support of the motion to\\n\\nwithdraw; the timing of the request; and the force of any claim of\\n\\nactual innocence. See United States v. Dunfee, 821 F.3d 120, 127\\n\\n(1st Cir. 2016) (per curiam); Merritt, 755 F.3d at 9. If the\\n\\ndefendant makes a prima facie showing of an entitlement to relief,\\n\\nthe court must then factor into the decisional calculus the\\n\\nprejudice, if any, that may accrue to the government as a result\\n\\nof allowing the plea to be withdrawn. See Merritt, 755 F.3d at 9.\\n\\n In the district court — as here — Flete-Garcia complained\\n\\nthat his guilty plea was neither intelligent nor knowing because\\n\\n\\\"he did not understand many of the important aspects of the Rule\\n\\n11 hearing.\\\" The district court rejected this conclusory plaint,\\n\\nfinding that the plea was suitably informed and not the product of\\n\\nany coercion. In the court's view, it was manifest that Flete-\\n\\n\\n - 9 -\\n\\fGarcia had fully considered the decision to change his plea,\\n\\nunderstood the nature and scope of his plea, and had not made the\\n\\ndecision in the heat of the moment. Moreover, Flete-Garcia's\\n\\nproffered reason for withdrawing his plea was weak, especially\\n\\nsince his decision to plead was reached after hearing the bulk of\\n\\nthe government's evidence and an outline of the proof that\\n\\nremained. See Fernández-Santos, 856 F.3d at 16-17. Finally, the\\n\\ncourt noted that Flete-Garcia had made no claim of actual\\n\\ninnocence.\\n\\n Flete-Garcia asserts that the district court's refusal\\n\\nto allow him to retract his guilty plea was an abuse of discretion\\n\\nbecause he was confused about the factual basis for counts 2 and\\n\\n3 — and the district court compounded his confusion by\\n\\n\\\"constrain[ing]\\\" him to \\\"short yes or no answers.\\\" This assertion\\n\\nis belied by the record. The transcript of the Rule 11 hearing\\n\\nmakes pellucid that even though Flete-Garcia's responses to some\\n\\nof the district court's questions warranted further inquiry, the\\n\\ncourt conducted just such an inquiry. It patiently explained and\\n\\nre-explained the nature of the offenses to which Flete-Garcia was\\n\\npleading and recounted the implications that would follow.\\n\\n An example illustrates the district court's approach.\\n\\nWhen the court asked Flete-Garcia whether he agreed to the factual\\n\\nbasis for counts 2 and 3 (specifically, that he had possession of\\n\\ntwo lists of stolen PII), Flete-Garcia replied that he did not\\n\\n\\n - 10 -\\n\\f\\\"know where [the government] got that from.\\\" In response, the\\n\\ncourt reminded Flete-Garcia that he did not have to plead guilty,\\n\\nthat he could elect to resume the trial, and that he had the option\\n\\nof pleading guilty to some charges and continuing to contest the\\n\\nothers. The court also restated the charges that Flete-Garcia had\\n\\nquestioned (counts 2 and 3) and summarized the evidence\\n\\nunderpinning those charges. At that point, Flete-Garcia\\n\\nreaffirmed his desire to plead guilty and admitted to the factual\\n\\nbasis for all of the charges.\\n\\n In the last analysis, Rule 11 requires a district court\\n\\nto ensure that the defendant both knows and understands the nature\\n\\nof the charges to which he is pleading. See Fed. R. Crim. P.\\n\\n11(b)(1)(G). This does not mean, though, that Rule 11 is off the\\n\\ntable simply because a defendant indicates some uncertainty about\\n\\nthe factual basis for a proposed guilty plea. Where, as here, the\\n\\ncourt resolves such uncertainties to the defendant's expressed\\n\\nsatisfaction through clarification and explanation, a guilty plea\\n\\nmay qualify as voluntary, intelligent, and knowing. See United\\n\\nStates v. Ramos-Mejía, 721 F.3d 12, 15 (1st Cir. 2013).\\n\\n This is such a case, and Flete-Garcia offers no plausible\\n\\nbasis for concluding that he did not fully understand the charges\\n\\nagainst him.2 At any rate, all indications are to the contrary:\\n\\n\\n 2In the district court, Flete-Garcia attempted to bolster\\nhis argument by submitting a letter from a neuropsychologist\\n\\n\\n - 11 -\\n\\fhe was present during jury selection and nearly four full days of\\n\\ntrial, heard the prosecutor's opening statement and the testimony\\n\\nof nineteen of the government's twenty-three witnesses (including\\n\\nsome who testified about the stolen PII), and listened as the\\n\\nprosecutor summarized the remaining evidence at the Rule 11\\n\\nhearing. Additionally, the district court explained all of the\\n\\ncharges to Flete-Garcia as well as the consequences of changing\\n\\nhis plea.\\n\\n We find hollow Flete-Garcia's protestation that he felt\\n\\nconstrained by the district court to respond with yes or no\\n\\nanswers. To be sure, the district court kept a rather tight rein\\n\\non the colloquy — a commendable practice given that an empaneled\\n\\njury was being held in limbo. But the court did no more than was\\n\\nreasonably necessary to keep the proceedings on track, and we\\n\\ndiscern no error in its management of the Rule 11 hearing. Viewed\\n\\nobjectively, the court's dialogue with Flete-Garcia adroitly\\n\\nbalanced its obligation to ensure that the plea was voluntary,\\n\\nknowing, and intelligent against the need for the fair and orderly\\n\\nadministration of the Rule 11 hearing.\\n\\n\\n\\nsuggesting that he may have had \\\"situational anxiety,\\\" potentially\\nimpacting his understanding of what was transpiring in the Rule 11\\nhearing. Before us, Flete-Garcia mentions this letter in passing\\nbut makes no developed argumentation predicated on it.\\nConsequently, we deem the point abandoned. See United States v.\\nZannino, 895 F.2d 1, 17 (1st Cir. 1990) (\\\"[I]ssues adverted to in\\na perfunctory manner, unaccompanied by some effort at developed\\nargumentation, are deemed waived.\\\").\\n\\n\\n - 12 -\\n\\f The short of it is that here, as in Dunfee, Flete-Garcia\\n\\n\\\"affirmatively declared under oath at a properly conducted Rule 11\\n\\nhearing that he was guilty of the crimes with which he was\\n\\ncharged.\\\" 821 F.3d at 128. In the absence of any plausible basis\\n\\nfor discounting them, the district court was \\\"entitled to give\\n\\nweight to the defendant's statements at his change-of-plea\\n\\ncolloquy.\\\" United States v. Santiago Miranda, 654 F.3d 130, 138\\n\\n(1st Cir. 2011). On this record, we discern nothing approaching\\n\\nan abuse of discretion in the district court's determination that\\n\\nFlete-Garcia had failed to show a fair and just reason for\\n\\nwithdrawing his plea.3\\n\\nIII. CERTAIN SENTENCING RELATED MATTERS\\n\\n Flete-Garcia offers up a salmagundi of claims relating\\n\\nto certain matters adjudicated in connection with the sentencing\\n\\nhearing. We subdivide our discussion of these claims into discrete\\n\\nsegments.\\n\\n A. Enhancement for Number of Victims.\\n\\n We start with Flete-Garcia's challenge to the district\\n\\ncourt's application of a two-level enhancement for crimes\\n\\ninvolving ten or more victims. See USSG §2B1.1(b)(2)(A)(i). For\\n\\nthis purpose, a victim is described as \\\"any individual whose means\\n\\n\\n 3 To the extent that Flete-Garcia claims that his guilty plea\\nwas involuntary due to ineffective assistance of counsel, we\\naddress that claim in conjunction with his other ineffective\\nassistance claims. See infra Part V.\\n\\n\\n - 13 -\\n\\fof identification was used unlawfully or without authority.\\\" Id.\\n\\n§2B1.1, app. n.4(E)(ii). Because Flete-Garcia preserved this\\n\\nclaim of error below, we review the district court's factual\\n\\nfindings for clear error and its application of the law (including\\n\\nits application of the sentencing guidelines) de novo. See United\\n\\nStates v. Carbajal-Váldez, 874 F.3d 778, 782-83 (1st Cir. 2017),\\n\\ncert. denied, 138 S. Ct. 2586 (2018); United States v. Nuñez, 852\\n\\nF.3d 141, 144 (1st Cir. 2017).\\n\\n We have made pellucid that \\\"[c]lear error is not an\\n\\nappellant-friendly standard.\\\" Carbajal-Váldez, 874 F.3d at 783.\\n\\nThis demanding standard is satisfied only when, \\\"upon whole-\\n\\nrecord-review, an inquiring court 'form[s] a strong, unyielding\\n\\nbelief that a mistake has been made.'\\\" Nuñez, 852 F.3d at 144\\n\\n(alteration in original) (quoting United States v. Cintrón-\\n\\nEchautegui, 604 F.3d 1, 6 (1st Cir. 2010)). If two plausible but\\n\\ncompeting inferences may be drawn from particular facts, a\\n\\nsentencing court's choice between those two competing inferences\\n\\ncannot be clearly erroneous. See id. at 146; United States v.\\n\\nRuiz, 905 F.2d 499, 508 (1st Cir. 1990).\\n\\n It is by now familiar lore that the government bears the\\n\\nburden of proving the applicability of a sentencing enhancement.\\n\\nSee United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).\\n\\n\\\"It must carry this burden by a preponderance of the evidence.\\\"\\n\\nId.\\n\\n\\n - 14 -\\n\\f In this instance, it is nose-on-the-face plain that more\\n\\nthan ten people were affected by Flete-Garcia's scheme. After\\n\\nall, Flete-Garcia stole PII relating to hundreds of individuals,\\n\\nused the stolen PII corruptly, and pleaded guilty to no fewer than\\n\\nseventeen counts of aggravated identity theft. Undaunted by these\\n\\nironclad facts, Flete-Garcia rests his claim of error on language\\n\\nin the sentencing guidelines. With respect to aggravated identity\\n\\ntheft, the guidelines link the term of immurement to the statute\\n\\nof conviction. See USSG §2B1.6(a). In this case, the statute\\n\\nrequires a mandatory two-year term for a defendant who \\\"knowingly\\n\\ntransfers, possesses, or uses, without lawful authority, a means\\n\\nof identification of another person.\\\" 18 U.S.C. § 1028A.\\n\\n But there is a rub: an application note instructs that\\n\\n\\\"[i]f a sentence . . . is imposed in conjunction with a sentence\\n\\nfor an underlying offense,\\\" the sentencing court should \\\"not apply\\n\\nany specific offense characteristic for the transfer, possession,\\n\\nor use of a means of identification\\\" in fashioning the sentence\\n\\nfor the underlying offense. USSG §2B1.6, app. n.2. In other\\n\\nwords, the application note prohibits the enhancement of a sentence\\n\\nfor the same conduct (the transfer, possession, or use of a means\\n\\nof identification) that is captured by the statute.\\n\\n Flete-Garcia asserts that the number of victims\\n\\nenhancement violates the letter (or at least the spirit) of the\\n\\napplication note. We do not agree. Even though we have recognized\\n\\n\\n - 15 -\\n\\fthat the prohibition contained in section 2B1.6 may preclude some\\n\\nenhancements germane to the underlying offense, see United States\\n\\nv. Jones, 551 F.3d 19, 25 (1st Cir. 2008), Flete-Garcia's assertion\\n\\nis unfounded.\\n\\n The key is whether the proposed enhancement relates to\\n\\na characteristic of the offense. See United States v. Sharapka,\\n\\n526 F.3d 58, 62 (1st Cir. 2008). If so, it is precluded. See id.\\n\\nOtherwise, it is not precluded. See id. Flete-Garcia submits\\n\\nthat the number of victims enhancement falls into the category of\\n\\nprohibited enhancements because the sole reason for its\\n\\napplication was that he used a means of identification to\\n\\nperpetrate his crimes. Flete-Garcia, however, takes too myopic a\\n\\nview.\\n\\n Here, the number of victims enhancement does not punish\\n\\nhim simply for using a means of identification but, rather,\\n\\npunishes him for the breadth of his criminality, that is, for using\\n\\nthe means of identification of ten or more individuals in the\\n\\ncourse of his criminal activity.\\n\\n Section 2B1.6 prohibits an enhancement that is based on\\n\\nthe nature of the offense (transferring, possessing, or using a\\n\\nmeans of identification). See USSG §2B1.6, app. n.2; see also\\n\\nSharapka, 526 F.3d at 62. The guideline provision, though, is\\n\\nsilent as to an enhancement based on the breadth of the offense.\\n\\nSee United States v. Gonzales, 844 F.3d 929, 932 (10th Cir. 2016)\\n\\n\\n - 16 -\\n\\f(observing that application note 2 prohibits an enhancement based\\n\\non nature of crime but not one \\\"based on the extent of such a\\n\\ncrime\\\" (emphasis in original)). In the case at hand, the number\\n\\nof victims enhancement plainly has its genesis in the breadth of\\n\\nFlete-Garcia's criminal activity. That is an appropriate use of\\n\\nthe enhancement. See id. at 933 (explaining that enhancement\\n\\naccomplishes task of treating \\\"criminal conduct more seriously as\\n\\nthe number of stolen identities increases\\\"). Such an\\n\\ninterpretation is consistent with the structure of the enhancement\\n\\nitself, which ratchets up as the number of victims and the extent\\n\\nof the impact on them increases. Compare, e.g., USSG\\n\\n§2B1.1(b)(2)(A)(i) (increasing offense level by two for ten or\\n\\nmore victims), with, e.g., id. §2B1.1(b)(2)(C) (increasing offense\\n\\nlevel by six for substantial financial hardship to twenty-five or\\n\\nmore victims).\\n\\n So, too, the district court's application of the\\n\\nenhancement is consistent with the text of 18 U.S.C. § 1028A.\\n\\nWhile a conviction for aggravated identity theft mandates a two-\\n\\nyear sentence, the statute does not factor the number of victims\\n\\ninto the calculus of punishment.\\n\\n Our view of the application note aligns us with our\\n\\nsister circuits. All of the circuits that have considered the\\n\\nmatter have rejected claims of sentencing error similar to the\\n\\nclaim that Flete-Garcia advances. See, e.g., Gonzales, 844 F.3d\\n\\n\\n - 17 -\\n\\fat 932-33; United States v. Ford, 784 F.3d 1386, 1397-98 (11th\\n\\nCir. 2015); United States v. Anderson, 532 F. App'x 373, 378 (4th\\n\\nCir. 2013); United States v. Lyles, 506 F. App'x 440, 447 (6th\\n\\nCir. 2012); United States v. Yummi, 408 F. App'x 537, 541 (3d Cir.\\n\\n2010). By the same token, it fits comfortably with our earlier\\n\\ncases considering the interplay between other enhancements and\\n\\nUSSG §2B1.6. See, e.g., Jones, 551 F.3d at 25; (considering\\n\\ninterplay between sections 2B1.1(b)(10)(B) and 2B1.6); Sharapka,\\n\\n526 F.3d at 62 (considering interplay between sections\\n\\n2B1.1(b)(10)(A)(i), (C)(i) and 2B1.6).\\n\\n We conclude that the statute and the guideline\\n\\nprovision, read together, present no barrier to the application of\\n\\nthe number of victims enhancement in this case. As applied here,\\n\\nthe enhancement punished Flete-Garcia for the overall breadth of\\n\\nhis criminal activity — a factor not captured by the statute of\\n\\nconviction and, thus, not foreclosed by application note 2.\\n\\n That ends this aspect of the matter. Because we hold\\n\\nthat the district court did not clearly err in imposing a two-\\n\\nlevel enhancement for the presence of ten or more victims, Flete-\\n\\nGarcia's claim of error founders.\\n\\n B. Enhancement for Amount of Loss.\\n\\n Flete-Garcia posits that the district court erred in\\n\\ncalculating the amount of loss attributable to the offenses of\\n\\nconviction. In this regard, he notes that the district court\\n\\n\\n - 18 -\\n\\faccepted the government's calculation of both the amounts refunded\\n\\non fraudulent tax-return claims and the amounts sought (though not\\n\\npaid) on other fraudulent refund claims. In a nutshell, he argues\\n\\nthat these loss calculations were errant: they were based on the\\n\\nflawed testimony of witnesses, unreliable information, and unsound\\n\\nauditing methods.\\n\\n We begin with bedrock. \\\"In a fraud case resulting in\\n\\nfinancial loss, the defendant's guideline sentencing range is\\n\\ndetermined in part\\\" by the amount of loss. United States v.\\n\\nNaphaeng, 906 F.3d 173, 179 (1st Cir. 2018), cert. denied, 139 S.\\n\\nCt. 1233 (2019). For this purpose, \\\"loss is the greater of actual\\n\\nloss or intended loss.\\\" USSG §2B1.1, app. n.3(A). Since intended\\n\\nloss normally subsumes actual loss, intended loss is often the\\n\\ngreater of the two. So it is here,4 and intended loss is defined\\n\\nas \\\"the pecuniary harm that the defendant purposely sought to\\n\\ninflict,\\\" whether or not achievable. Id. §2B1.1, app. n.3(A)(ii).\\n\\n The government must prove the amount of loss by a\\n\\npreponderance of the evidence. See United States v. Curran, 525\\n\\nF.3d 74, 78 (1st Cir. 2008). In arriving at a loss figure, a\\n\\nsentencing court is free to consider both losses stemming directly\\n\\nfrom the conduct underlying the offenses of conviction and losses\\n\\n\\n 4 The PSI Report recognized the encompassing nature of the\\n\\\"intended loss\\\" rubric and distinguished between the two types of\\nloss calculated by the government as money that was claimed and\\npaid versus money that was claimed but blocked.\\n\\n\\n - 19 -\\n\\fstemming from any relevant conduct (including uncharged conduct).\\n\\nSee id.; United States v. Ranney, 298 F.3d 74, 80-81 (1st Cir.\\n\\n2002); United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).\\n\\n The sentencing court has considerable discretion in\\n\\ndetermining what evidence should be regarded as reliable in making\\n\\nfindings as to the amount of loss. See Sklar, 920 F.2d at 110.\\n\\nSuch evidence may come from \\\"virtually any dependable [source of]\\n\\ninformation.\\\" Id. It is common ground that a sentencing court's\\n\\nloss calculations are entitled to \\\"appropriate deference,\\\" given\\n\\nthe court's \\\"unique position to assess the evidence and estimate\\n\\nthe loss based upon that evidence.\\\" USSG §2B1.1, app. n.3(C).\\n\\nSimilarly, \\\"credibility determinations lie within the domain of\\n\\nthe district court,\\\" and \\\"[o]nly rarely — and in the most urgent\\n\\ncircumstances — will we, from the vista of a sterile appellate\\n\\nrecord, meddle in such matters.\\\" United States v. St. Cyr, 977\\n\\nF.2d 698, 706 (1st Cir. 1992).\\n\\n We add, moreover, that a loss calculation need not be\\n\\nprecise: the sentencing court need only make a reasonable estimate\\n\\nof the range of loss. See Curran, 525 F.3d at 78. This latitude\\n\\ncomports with the way in which amount of loss relates to a\\n\\ndefendant's sentence: the extent of the \\\"loss\\\" enhancement\\n\\ncorresponds to a range of loss amounts. See USSG §2B1.1(b)(1).\\n\\nHere, the district court's loss calculation totaled approximately\\n\\n$12.7 million, leaving a cushion of more than $3 million over the\\n\\n\\n - 20 -\\n\\fminimum amount ($9.5 million) needed to trigger the twenty-level\\n\\nenhancement. See id. §2B1.1(b)(1)(K), (L) (directing twenty-level\\n\\nenhancement for loss exceeding $9.5 million and up to $25 million).\\n\\nThus, the same enhancement results whether the loss falls at the\\n\\nbottom of the range, at the top of the range, or somewhere in the\\n\\nmiddle.\\n\\n Flete-Garcia pleaded guilty to converting seventeen\\n\\nparticular tax-refund checks (totaling $125,756) for his own use.\\n\\nAt sentencing, the government contended that this was the tip of\\n\\nthe iceberg, and that it constituted a mere fraction of the overall\\n\\nharm wrought by Flete-Garcia. The district court agreed: it was\\n\\n\\\"satisfied\\\" that \\\"$7.7 million in checks\\\" had been \\\"paid out\\\" by\\n\\nthe IRS in response to fraudulent returns instigated by Flete-\\n\\nGarcia. The court was also satisfied that approximately $5 million\\n\\nin \\\"blocked\\\" refunds (that is, refunds claimed but not paid)\\n\\nqualified as intended loss. In making these findings, the court\\n\\ncredited the trial testimony of Flete-Garcia's co-conspirators and\\n\\na testifying IRS agent, stating that it believed the witnesses'\\n\\ndescriptions of the scheme and accepted the IRS agent's method of\\n\\ncalculating the losses stemming from that scheme.\\n\\n In reviewing these determinations, we start by taking a\\n\\ncloser look at the $7.7 million in losses stemming from fraudulent\\n\\ntax-refund claims actually paid out by the IRS. To cash the checks\\n\\nthat he received, Flete-Garcia engaged a pair of co-conspirators,\\n\\n\\n - 21 -\\n\\fCarmen Guzman and Rocio Dominguez (both of whom operated businesses\\n\\nthat provided check-cashing services). Guzman and Dominguez\\n\\ntestified that they began handling checks for Flete-Garcia in 2007\\n\\nand 2009, respectively. Flete-Garcia's arrangements with the two\\n\\nwomen were similar: he would give tax-refund checks to one of\\n\\nthem, she would deposit the checks in one of her accounts, and\\n\\nwould then give Flete-Garcia a sum equal to the aggregate face\\n\\namount of the checks, less an agreed \\\"cut.\\\" Flete-Garcia did not\\n\\nappear as a named payee on any of the stacks of checks (sometimes\\n\\nas many as forty at a time) that he delivered to Guzman and\\n\\nDominguez. Guzman testified that she never took a fraudulent tax-\\n\\nrefund check from anyone other than Flete-Garcia. Dominguez,\\n\\nthough, testified that she accepted fraudulent tax-refund checks\\n\\nnot only from Flete-Garcia but also from another fraudster. She\\n\\nadded that she could \\\"count . . . in [her] hand\\\" the total number\\n\\nof fraudulent checks she received from this other fraudster.\\n\\n According to both Guzman and Dominguez, their complicity\\n\\nin Flete-Garcia's scheme continued until their accounts were\\n\\nfrozen (in or around 2012). The freezing of these accounts did\\n\\nnot deter Flete-Garcia: he simply recruited a third check-cashing\\n\\nco-conspirator, Dubin Gonzalez-Pabon (Gonzalez). Gonzalez\\n\\ntestified that he, along with another person, picked up tax-refund\\n\\nchecks from Flete-Garcia at a barbershop and gave Flete-Garcia the\\n\\nbulk of the proceeds. At the same time, Gonzalez was involved in\\n\\n\\n - 22 -\\n\\fanother tax-fraud racket (which the PSI Report classified as a\\n\\n\\\"related case\\\").\\n\\n In preparation for trial, an IRS agent, Tuan Nguyen,\\n\\nsurveyed all of the co-conspirators' bank accounts for evidence of\\n\\ndeposited tax-refund checks. While Flete-Garcia's guilty plea\\n\\npretermitted Nguyen's scheduled trial testimony, Nguyen\\n\\nnonetheless identified approximately 1,400 fraudulently obtained\\n\\nchecks and catalogued them in summary charts submitted at\\n\\nsentencing. These summary charts identified approximately $7.7\\n\\nmillion in monies actually paid out by the IRS in the form of\\n\\nfraudulently obtained tax-refund checks — and each check\\n\\ncorresponded to a tax return actually filed.\\n\\n At sentencing, Flete-Garcia assailed the government's\\n\\nloss calculations by pointing to purported anomalies in the\\n\\nevidence. In his view, these anomalies compelled the conclusion\\n\\nthat \\\"much of the data and documents used by the Government and\\n\\nthe Probation Office were flawed and contained information that\\n\\ndid not support the loss figures.\\\" Moreover, he argued that \\\"the\\n\\nchecks could not have been printed and sent from the U.S. Treasury\\n\\nin the manner described by the Government.\\\"\\n\\n The district court considered all of Flete-Garcia's\\n\\narguments. In the end, the court had no difficulty in attributing\\n\\nthe claimed $7.7 million in actual loss to Flete-Garcia. The court\\n\\ncredited the government's explanation of Nguyen's methodology and\\n\\n\\n - 23 -\\n\\fsupportedly found his summary charts reliable. Noting that checks\\n\\nidentified by the government \\\"match[ed] tax returns that were\\n\\nactually filed with the IRS,\\\" the court concluded that the actual\\n\\nloss figure — $7.7 million — was \\\"real money, actually paid\\\" by\\n\\nthe IRS and was attributable to Flete-Garcia. In reaching this\\n\\nconclusion, the court deemed it highly significant that the monies\\n\\npaid out were traceable to checks in the co-conspirators' accounts.\\n\\nAs the court put it, \\\"[t]hat's what those witnesses said\\\" and \\\"I\\n\\nbelieved them.\\\"\\n\\n The record makes manifest that the district court did\\n\\nnot blindly accept the government's reconstruction of the\\n\\npertinent events. To the contrary, the court gave due\\n\\nconsideration to Flete-Garcia's compendium of purported\\n\\nevidentiary anomalies. The court observed that Flete-Garcia\\n\\nraised \\\"some things around the margin,\\\" but found that none of the\\n\\nmatters mentioned by Flete-Garcia shook its faith in the\\n\\ncredibility of the government's witnesses.\\n\\n In this venue, Flete-Garcia argues that the district\\n\\ncourt's findings were riddled with error. He continues to insist\\n\\nthat the evidence on which the district court relied was faulty\\n\\nbecause, among other things, the checks (or at least some of them)\\n\\nwere altered; the mailing addresses for some checks did not match\\n\\nthe government's theory of the case; multiple checks were sometimes\\n\\nissued for the same taxpayer in a single tax year; the amounts of\\n\\n\\n - 24 -\\n\\fa few refund checks were not entirely congruent with the underlying\\n\\ntax returns; the checks cashed with Dominguez's help were not\\n\\naltogether consistent with her testimony; and the government\\n\\nfailed to offer any co-conspirator testimony pertaining to e-tax\\n\\nreturns. These arguments, though multifarious, boil down to — in\\n\\nhis words — an all-out assault on \\\"the reliability of the\\n\\ncooperating witnesses, as well as the documentary evidence.\\\"\\n\\n But for the most part, Flete-Garcia is firing blanks.\\n\\nTo begin, his arguments give unduly short shrift to \\\"the time-\\n\\ntested tenet that 'credibility determinations are part of the\\n\\nsentencing court's basic armamentarium.'\\\" United States v.\\n\\nBernier, 660 F.3d 543, 546 (1st Cir. 2011) (quoting United States\\n\\nv. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)). We will overturn\\n\\nsuch determinations \\\"only if we have a definite and firm conviction\\n\\nthat a mistake has been committed,\\\" id. (quoting United States v.\\n\\nGonzález-Vélez, 587 F.3d 494, 504 (1st Cir. 2009)), and the record\\n\\nin this case gives rise to nothing resembling such a conviction.\\n\\nAfter all, \\\"the sentencing judge presided over the trial and was\\n\\nin an enviable position to gauge [the witnesses'] credibility and\\n\\nto separate wheat from chaff.\\\" Id. Flete-Garcia has identified\\n\\nnothing that leads us to believe that \\\"a reasonable factfinder\\n\\nwould not credit\\\" the government's witnesses and evidence.\\n\\nAnderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).\\n\\n\\n\\n\\n - 25 -\\n\\f It would serve no useful purpose to dissect Flete-\\n\\nGarcia's wide-ranging critique, epithet by epithet. A few\\n\\nexamples, though, will help to illustrate why those criticisms are\\n\\nnowhere near as potent as Flete-Garcia would have us believe.\\n\\n Flete-Garcia asserts that Dominguez testified that she\\n\\nwrote by hand on every check that he gave her after she verified\\n\\nthat it was really an IRS tax-refund check and, thus, the checks\\n\\nin evidence from her accounts (which were devoid of her\\n\\nhandwriting) were unreliable. But Flete-Garcia is painting with\\n\\ntoo broad a brush: Dominguez testified that she followed this\\n\\npractice only \\\"in the beginning\\\" of her criminal partnership with\\n\\nFlete-Garcia. Her testimony further suggested that her business\\n\\npractices evolved in response to the burgeoning volume of checks\\n\\nthat he delivered, thus paving the way for a reasonable inference\\n\\nthat Dominguez had abandoned the time-consuming practice of\\n\\nverifying each check by the time the government's investigation\\n\\ncommenced.\\n\\n Another example makes a similar point. Flete-Garcia\\n\\nharps on the fact that the government's charts included some\\n\\ninstances of multiple refund checks issued for the same social\\n\\nsecurity number in the same year. He complains that the government\\n\\noffered no explanation for how this phenomenon could have occurred\\n\\nwhen the IRS screens for duplicate social security numbers. But\\n\\nas one of the government's witnesses explained, a refund check\\n\\n\\n - 26 -\\n\\fcould get issued for a bogus social security number if the error\\n\\nwas \\\"not accounted for in time.\\\" We think that this testimony,\\n\\nalthough specifically referencing fictitious social security\\n\\nnumbers rather than duplications, is sufficient to ground a\\n\\nreasonable inference that fraud detection is not always automatic.\\n\\nSo viewed, the presence of duplicate social security numbers did\\n\\nnot render the government's charts wholly unreliable.\\n\\n A third example deals with Flete-Garcia's complaint\\n\\nabout the government's failure to offer particularized evidence\\n\\nabout e-tax returns. Although the government's exhibits did\\n\\ninclude some e-tax returns, nothing in the record furnishes a basis\\n\\nfor a founded claim that some special sort of proof was required\\n\\nwith respect to those returns. The testimony that the government\\n\\noffered to validate the exhibits perforce validate the e-tax\\n\\nreturns as well.\\n\\n To sum up, the district court had wide discretion to\\n\\n\\\"evaluate virtually any dependable information\\\" and determine the\\n\\nprobative value of such information with respect to issues material\\n\\nto sentencing. United States v. Bradley, 917 F.2d 601, 605 (1st\\n\\nCir. 1990). Although some of the discrepancies identified by\\n\\nFlete-Garcia might plausibly suggest problems with a few of the\\n\\nitems on which the district court relied, such an inference was by\\n\\nno means compelled. And as we have said, \\\"when there are two\\n\\nplausible views of the record, the sentencing court's adoption of\\n\\n\\n - 27 -\\n\\fone such view cannot be clearly erroneous.\\\" St. Cyr, 977 F.2d at\\n\\n706. We conclude, therefore, that the district court's finding of\\n\\n$7.7 million in losses actually paid was not clearly erroneous.\\n\\n This brings us to the approximately $5 million in\\n\\nintended loss attributed to \\\"blocked\\\" refunds. The facts\\n\\nundergirding this finding came largely from the testimony of yet\\n\\nanother co-conspirator: Juan Santiago. Santiago recalled that\\n\\nFlete-Garcia gave him a computer, the PII, a list of addresses,\\n\\nand a list of employer identification numbers. Santiago then was\\n\\ninstructed how to plug this information into tax-preparation\\n\\nsoftware and how to prepare tagalong W-2 forms (ostensibly issued\\n\\nby \\\"any number of companies\\\"). He worked his part of the scheme\\n\\nover the course of several years, but on two occasions sold PII to\\n\\na person who turned out to be a government cooperator.\\n\\n With the lists of PII in evidence, an IRS agent, Richard\\n\\nAdams, described the methodology that he used to identify\\n\\nfraudulently filed tax-refund claims deriving from these lists.\\n\\nIn general terms, Adams compared each filed tax return\\n\\ncorresponding to a name in the PII to independent information\\n\\nobtained from an IRS database. When he spotted a mismatch, he\\n\\nclassified the return as fraudulent. He then prepared summary\\n\\ncharts, which catalogued approximately $5 million in bogus\\n\\n\\\"blocked\\\" claims.\\n\\n\\n\\n\\n - 28 -\\n\\f The sentencing court was intimately familiar with this\\n\\ntestimony: it not only presided over the trial but also presided\\n\\nover the change-of-plea hearing (at which Flete-Garcia admitted\\n\\nhis guilt with respect to, inter alia, access device fraud arising\\n\\nout of his possession of the two lists of PII). The court made an\\n\\nexpress finding that Santiago \\\"was a truthful witness.\\\" Similarly,\\n\\nit found Adams' methodology (and, thus, his summary charts)\\n\\nreliable.\\n\\n Even so, the court fretted over whether all $5 million\\n\\ncould fairly be attributed to Flete-Garcia given that Santiago had\\n\\nadmitted to doing some \\\"freelancing.\\\" In the end, though, the\\n\\ncourt accepted the government's explanation that Santiago's\\n\\nfreelancing was limited to the sale of the lists of PII and of\\n\\nchecks not attributable to Flete-Garcia. Relatedly, the court\\n\\nfound that Santiago consistently used the lists to advance Flete-\\n\\nGarcia's scheme by \\\"prepar[ing] returns that were rejected by the\\n\\nIRS.\\\" Given these findings — and taking into account that the\\n\\ngovernment had not attributed all the losses from Santiago's\\n\\nactivities to Flete-Garcia — the court concluded that the\\n\\ngovernment had carried its burden of proving by preponderant\\n\\nevidence an intended loss of $5 million referable to the \\\"blocked\\\"\\n\\nrefunds.\\n\\n Flete-Garcia tries to sidestep this hurdle, taking issue\\n\\nwith both Santiago's veracity and the related amount of loss. To\\n\\n\\n - 29 -\\n\\fbolster his arguments, he points out that the summary charts\\n\\ncontain addresses across the United States. He says that when\\n\\nSantiago sold the PII, he did not sell the accompanying list of\\n\\naddresses and, in any event, the geographic diversity of addresses\\n\\ncontradicts Santiago's testimony that the tax refunds obtained\\n\\nwere mostly directed to post office boxes in Massachusetts and\\n\\nLouisiana. He adds that the W-2 forms reflected putative employers\\n\\ndifferent than those identified by Santiago.\\n\\n These arguments lack force. Santiago's testimony, found\\n\\ncredible by the district court, forges a direct link between Flete-\\n\\nGarcia and the PII. To seal the deal, the record shows with\\n\\nconspicuous clarity that the IRS used the PII from the lists —\\n\\nlists that Flete-Garcia pleaded guilty to possessing — to identify\\n\\nthe suspect tax returns. While Santiago admitted to freelancing,\\n\\nthe court reasonably credited the government's explanation that\\n\\nSantiago's separate activities were not included in the loss\\n\\ncalculation performed for Flete-Garcia. Viewing the record as a\\n\\nwhole, the sentencing court had more than enough reliable\\n\\ninformation to ground its finding, by a preponderance of the\\n\\nevidence, that the $5 million loss was attributable to Flete-\\n\\nGarcia.\\n\\n We add a coda. In this case, the sentencing court was\\n\\noperating with a substantial cushion. The court found the\\n\\naggregate amount of loss to be approximately $12.7 million, even\\n\\n\\n - 30 -\\n\\fthough all that was needed to justify the twenty-level enhancement\\n\\nwas a loss amount of $9.5 million. It follows that Flete-Garcia\\n\\ncannot demonstrate reversible error with respect to the amount-\\n\\nof-loss enhancement simply by nibbling around the edges of the\\n\\ndistrict court's findings: he must persuade us that at least $3.2\\n\\nmillion of the loss attributed to him by the court was the product\\n\\nof clear error. We are not so persuaded.\\n\\n Mathematics is an exact science. Engineering is an exact\\n\\nscience. But calculating amount of loss under the sentencing\\n\\nguidelines is far from an exact science. In fraud cases, amount\\n\\nof loss is meant to be a proxy for the harm (both actual and\\n\\nintended) inflicted by the fraudster's nefarious activities. All\\n\\nthat is required is a reasonable estimate of the amount of loss.\\n\\nSee Curran, 525 F.3d at 78. Here, the district court's findings,\\n\\nwhich spell out how and why the amount of loss attributable to\\n\\nFlete-Garcia comfortably exceed the $9.5 million threshold, easily\\n\\npass muster. Clear error is clearly absent.\\n\\n C. Discovery.\\n\\n Three days before his scheduled sentencing, Flete-Garcia\\n\\nmoved to compel production of materials regarding the IRS agent,\\n\\nJamie Clarke, who had overseen his case. Flete-Garcia averred\\n\\nthat, after he had pleaded guilty, Clarke was the subject of an\\n\\nassault allegation reported in the Boston Globe and that everything\\n\\n\\n\\n\\n - 31 -\\n\\fpertaining to the allegation was material to his case. The\\n\\ngovernment opposed the motion, and the district court denied it.\\n\\n We review the denial of a motion to compel discovery in\\n\\na criminal case for abuse of discretion. See United States v.\\n\\nCaro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005). Typically, the\\n\\ngovernment is obliged \\\"to disclose evidence in its possession that\\n\\nis favorable to the accused and material to guilt or punishment.\\\"\\n\\nUnited States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011)\\n\\n(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). To prevail on\\n\\na motion to compel, the defendant must show a likelihood of\\n\\nprejudice stemming from the government's nondisclosure. See\\n\\nUnited States v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir.\\n\\n1999). Thus, when a criminal defendant seeks discovery, he must\\n\\n\\\"be able to articulate with some specificity what evidence he hopes\\n\\nto find in the requested materials, why he thinks the materials\\n\\ncontain this evidence, and finally, why this evidence would be\\n\\nboth favorable to him and material.\\\" Prochilo, 629 F.3d at 269.5\\n\\n\\n 5 The parties have treated the denial of Flete-Garcia's motion\\nto compel discovery as a matter controlled by the Supreme Court's\\nwatershed opinion in Brady, 373 U.S. at 87. The fit is not perfect:\\nit is not clear that Brady entitles a defendant to evidence at\\nsentencing when that evidence relates exclusively to a matter that\\noccurred after the completion of the trial. Here, however, we\\nneed not pursue this question. \\\"The animating principle of Brady\\nis the 'avoidance of an unfair trial,'\\\" United States v. Mathur,\\n624 F.3d 498, 506 (1st Cir. 2010) (quoting Brady, 373 U.S. at 87),\\nand the parties regarded Brady as controlling. We therefore\\nassume, without deciding, that Brady is the beacon by which we\\nmust steer.\\n\\n\\n - 32 -\\n\\f Clarke did not testify at Flete-Garcia's trial.\\n\\nNevertheless, Flete-Garcia says that the requested information was\\n\\nmaterial because Clarke was present at trial, answered some\\n\\nquestions for the district court (out of the jury's earshot),\\n\\nserved as the lead case agent, and had access to all of the\\n\\ninformation that the government used to calculate the loss amounts.\\n\\n The district court denied Flete-Garcia's motion,\\n\\ndetermining that the government's investigation of Clarke was\\n\\nirrelevant and immaterial because that investigation did not bear\\n\\non Flete-Garcia's case. The court noted that Clarke neither\\n\\ncompiled the summary charts that reflected the loss computations\\n\\nnor testified at trial. And the assault allegation — though\\n\\nserious — was wholly unrelated to Flete-Garcia's case.\\n\\n The government concedes that Flete-Garcia's lawyer spoke\\n\\nwith the prosecutor before sentencing and asked for \\\"all\\n\\ninformation regarding prior complaints against Special Agent\\n\\nClarke and all information regarding the current investigation of\\n\\nSpecial Agent Clarke.\\\" Thus, the question reduces to whether the\\n\\ndistrict court abused its discretion in failing to find that the\\n\\nrequested information was likely to be both favorable to Flete-\\n\\nGarcia and material to his case.\\n\\n We discern no abuse of discretion in the district court's\\n\\ndenial of the motion to compel discovery. Flete-Garcia submits\\n\\nthat \\\"the allegations against . . . Clarke indicate a life\\n\\n\\n - 33 -\\n\\funraveling\\\" and that (given the other questions raised about the\\n\\nreliability of the government's evidence) \\\"the integrity of the\\n\\nagent who was responsible for that evidence is material.\\\" But the\\n\\nallegation against Clarke was simply that: a bare allegation.\\n\\nMore importantly, Flete-Garcia's quest for discovery had all the\\n\\nearmarks of an old-fashioned fishing expedition. He never\\n\\nexplained — apart from rank speculation — how information about\\n\\nthat allegation might have altered the course of the sentencing\\n\\nproceeding or otherwise affected his case. Where, as here, a\\n\\ngovernment agent is alleged to have committed misconduct unrelated\\n\\nto an earlier investigation that he supervised, such an allegation,\\n\\nwithout more, does not render the earlier investigation suspect.\\n\\nCf. United States v. Nelson-Rodriguez, 319 F.3d 12, 35 (1st Cir.\\n\\n2003) (finding no Brady violation when \\\"government failed to\\n\\nproduce . . . prior investigations which contained allegations\\n\\nthat [confidential informant] was involved in . . . murders\\\"\\n\\nbecause his \\\"alleged role in [those] murders was a collateral\\n\\nmatter\\\").\\n\\n To say more on this point would be to paint the lily. A\\n\\ndefendant ordinarily must make some showing of prejudice before an\\n\\nappellate court will step in and overrule a district court's\\n\\nreasoned decision to deny discovery, see Rosario-Peralta, 199 F.3d\\n\\nat 559, and Flete-Garcia has made no such showing here. Flete-\\n\\nGarcia's theory of materiality is based entirely on conjecture\\n\\n\\n - 34 -\\n\\fand, in such circumstances, a district court's refusal to compel\\n\\nproduction of requested information is not an abuse of discretion.\\n\\nSee United States v. Goris, 876 F.3d 40, 45 (1st Cir. 2017), cert.\\n\\ndenied, 138 S. Ct. 2011 (2018).\\n\\n D. Evidentiary Hearing.\\n\\n At sentencing, Flete-Garcia moved for an evidentiary\\n\\nhearing, suggesting that one was needed to reconcile the parties'\\n\\ncompeting narratives about the amount of loss. The district court\\n\\ndenied his motion, and Flete-Garcia assigns error.\\n\\n A criminal defendant, facing the imposition of sentence,\\n\\nis not entitled to an evidentiary hearing on demand. See United\\n\\nStates v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987) (explaining\\n\\nthat \\\"hearings cannot be convened at the whim of a suitor, made\\n\\navailable like popsicles in July, just because a passerby would\\n\\nlike to have one\\\"). The decision as to whether to hold such a\\n\\nhearing \\\"is left to the sound discretion of the district court.\\\"\\n\\nUnited States v. Brown, 621 F.3d 48, 57 (1st Cir. 2010). At\\n\\nsentencing, evidentiary hearings are the exception, not the rule\\n\\n— and an order denying an evidentiary hearing is reviewed only for\\n\\nabuse of discretion. See United States v. Shattuck, 961 F.2d 1012,\\n\\n1014-15 (1st Cir. 1992).\\n\\n In gauging the need for an evidentiary hearing, we\\n\\nconsider whether the defendant made \\\"a sufficient threshold\\n\\nshowing that material facts [were] in doubt or in dispute.\\\" United\\n\\n\\n - 35 -\\n\\fStates v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993) (quoting\\n\\nUnited States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)).\\n\\nBefore the district court, Flete-Garcia claimed that a hearing was\\n\\nneeded because \\\"the evidence in this case does not line up with\\n\\nthe sworn testimony, and there are evidentiary anomalies that do\\n\\nnot comport with the [g]overnment's claims at trial.\\\" In his view,\\n\\n\\\"[w]itnesses need[ed] to be subjected to cross-examination on the\\n\\ncritical problems with the evidence that underlies the loss\\n\\ncalculation.\\\"\\n\\n The district court disagreed, denying the motion and\\n\\nholding that Flete-Garcia did \\\"not identif[y] disputed issues of\\n\\nmaterial fact.\\\" The court noted, however, that it would be open\\n\\nto reconsidering its decision depending on what transpired at the\\n\\ndisposition hearing.\\n\\n During the disposition hearing, Flete-Garcia once again\\n\\ntried to convince the district court of the desirability of an\\n\\nevidentiary hearing. He emphasized the evidentiary anomalies to\\n\\nwhich he earlier had referred by, for example, pointing to some\\n\\ninstances in which there was a mismatch between the issue date and\\n\\nthe deposit date of particular checks. The district court\\n\\nacknowledged that the date discrepancy was a \\\"fair point[],\\\" but\\n\\nconcluded that no additional testimony was necessary because \\\"the\\n\\nvast majority, if not all of\\\" the dates matched.\\n\\n\\n\\n\\n - 36 -\\n\\f On appeal, Flete-Garcia maintains that there were \\\"clear\\n\\nproblems with the evidence\\\" and that, without a hearing, he was\\n\\n\\\"hamstrung in exploring these problems.\\\" In support, he relies on\\n\\na guideline provision instructing that \\\"the parties shall be given\\n\\nan adequate opportunity to present information to the court\\\"\\n\\nregarding a factor that is \\\"reasonably in dispute.\\\" USSG\\n\\n§6A1.3(a).\\n\\n Flete-Garcia's reliance on section 6A1.3 is mislaid. In\\n\\nterms, this provision is meant to ensure that, at sentencing, a\\n\\ndefendant is \\\"given an adequate opportunity\\\" to be heard. United\\n\\nStates v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989) (quoting USSG\\n\\n§6A1.3(a)). But an \\\"adequate opportunity\\\" is not always synonymous\\n\\nwith an evidentiary hearing, see id., and Flete-Garcia had a more-\\n\\nthan-adequate opportunity to be heard and to question the evidence\\n\\ngermane to sentencing.\\n\\n For one thing, much of the evidence relating to loss was\\n\\npresented at trial, and Flete-Garcia had the opportunity to cross-\\n\\nexamine the witnesses who presented it (including Adams, Guzman,\\n\\nDominguez, Gonzalez, and Santiago). For another thing, Flete-\\n\\nGarcia's counsel was able to argue extensively at the disposition\\n\\nhearing about perceived problems with the government's evidence.\\n\\nIn the circumstances of this case, no more was exigible to satisfy\\n\\nthe \\\"adequate opportunity\\\" requirement.\\n\\n\\n\\n\\n - 37 -\\n\\f We acknowledge that some of the questions raised by\\n\\nFlete-Garcia were nuanced. But in McAndrews, we recognized that\\n\\n\\\"we have consistently abjured mandatory evidentiary hearings in a\\n\\nwide variety of . . . delicate [and] nuanced situations.\\\" 12 F.3d\\n\\nat 279. Here, the \\\"evidentiary anomalies\\\" mentioned by Flete-\\n\\nGarcia dealt mainly with peripheral matters and did not cast any\\n\\nsignificant shadow over the government's proof. Moreover, the\\n\\ndistrict court was in an excellent position to weigh these alleged\\n\\nanomalies and gauge their import even without an evidentiary\\n\\nhearing. As we previously have noted, the district court had\\n\\npresided over the trial and was intimately familiar with the\\n\\nevidence before it. We must, therefore, accord substantial\\n\\ndeference to its determination that an evidentiary hearing would\\n\\nnot have been productive. See id. at 280; Shattuck, 961 F.2d at\\n\\n1015; cf. United States v. Cannons Eng'g Corp., 899 F.2d 79, 94\\n\\n(1st Cir. 1990) (warning that \\\"[d]istrict courts are busy places\\n\\nand makework hearings are to be avoided\\\"). Giving the district\\n\\ncourt its due, we discern no abuse of the court's broad discretion\\n\\nin its denial of Flete-Garcia's motion for an evidentiary hearing.\\n\\n E. The Due Process Claim.\\n\\n Flete-Garcia asserts, for the first time on appeal, that\\n\\nhis due process rights were violated by the district court's\\n\\n\\n\\n\\n - 38 -\\n\\freliance on false and misleading evidence.6 \\\"The plain error\\n\\nhurdle is high.\\\" United States v. Hunnewell, 891 F.2d 955, 956\\n\\n(1st Cir. 1989). To prevail under plain error review, an appellant\\n\\nmust show \\\"(1) that an error occurred (2) which was clear or\\n\\nobvious and which not only (3) affected the defendant's substantial\\n\\nrights, but also (4) seriously impaired the fairness, integrity,\\n\\nor public reputation of judicial proceedings.\\\" United States v.\\n\\nDuarte, 246 F.3d 56, 60 (1st Cir. 2001).\\n\\n The Due Process Clause protects a defendant by, inter\\n\\nalia, safeguarding against a sentence predicated on information\\n\\nthat is \\\"false or materially incorrect.\\\" United States v. Curran,\\n\\n926 F.2d 59, 61 (1st Cir. 1991). We have cautioned, however, that\\n\\n\\\"the due process right at sentencing is not as robust as the due\\n\\nprocess right at trial.\\\" United States v. Stile, 845 F.3d 425,\\n\\n430 (1st Cir. 2017). Even so, \\\"due process . . . requires that\\n\\nthe defendant be given an adequate opportunity to refute\\n\\ninformation relied on at sentencing.\\\" Id. (quoting United States\\n\\nv. Wilfred Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir. 1992)).\\n\\n\\n\\n\\n 6Flete-Garcia suggests that this argument is not new, noting\\nthat he contended at sentencing that some of the government's\\nevidence was unreliable. The fly in the ointment, though, is that\\nFlete-Garcia did not so much as suggest that the district court's\\nreliance on this evidence might violate due process. It follows\\nthat no due process claim was preserved. See Zannino, 895 F.2d at\\n17; see also Clauson v. Smith, 823 F.2d 660, 665-66 (1st Cir. 1987)\\n(concluding that new legal interpretations of factual record\\n\\\"cannot be surfaced for the first time on appeal\\\").\\n\\n\\n - 39 -\\n\\fRelatedly, due process demands that a sentencing court \\\"consider\\n\\nall the available evidence, including conflicting evidence\\\" to\\n\\n\\\"assure itself that a piece of proof is sufficiently reliable.\\\"\\n\\nUnited States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993).\\n\\n Here, Flete-Garcia was unquestionably on fair notice of\\n\\nall of the facts that the government deemed relevant to the\\n\\nimposition of sentence. Cf. United States v. Berzon 941 F.2d 8,\\n\\n19-20 (1st Cir. 1991) (holding that due process requires that\\n\\ndefendant be given fair notice of conduct and facts that will\\n\\ninform the sentencing court's determinations). Many of them had\\n\\nbeen explored during the nearly four days of trial, and others had\\n\\nsurfaced either at the Rule 11 hearing or in the PSI Report. Some\\n\\nof these facts may have been arguable, but none of them was plainly\\n\\nfalse. Moreover, Flete-Garcia was given wide latitude in his\\n\\nattempts to poke holes in the government's factual mosaic, and he\\n\\nwas able to develop his argument that some other fraud, independent\\n\\nof his own criminality, was afoot.\\n\\n For aught that appears, Flete-Garcia received all the\\n\\nprocess that was due. His claim of error therefore stumbles at\\n\\nthe first step of the plain error inquiry.\\n\\nIV. RESTITUTION\\n\\n Flete-Garcia's next plaint builds on one of his earlier\\n\\nplaints. He points to arguments that he marshalled in reproving\\n\\nthe sentencing court's findings with respect to amount of loss,\\n\\n\\n - 40 -\\n\\fsee supra Part III(B), and asserts that those arguments \\\"make clear\\n\\nthat the . . . restitution order is flawed.\\\" This bareboned\\n\\nassertion does not get him very far.\\n\\n The district court imposed the restitution order\\n\\npursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.\\n\\n§ 3663A. \\\"[T]he MVRA mandates that a defendant convicted of\\n\\ncertain federal crimes, including those 'committed by fraud or\\n\\ndeceit,' must make restitution to victims commensurate with . . .\\n\\nactual losses.\\\" Naphaeng, 906 F.3d at 179 (quoting 18 U.S.C.\\n\\n§ 3663A(c)(1)(A)(ii)). Although restitution typically bears a\\n\\nrelationship to amount of loss, the two are conceptually distinct.\\n\\nIn fraud cases, the amount of loss is an integer in the sentencing\\n\\ncalculus: it is computed in order to establish the defendant's\\n\\noffense level and, thus, his GSR. Viewed in context, then, amount\\n\\nof loss is \\\"the primary metric by which 'the seriousness of the\\n\\noffense and the defendant's relative culpability' are measured.\\\"\\n\\nUnited States v. Alphas, 785 F.3d 775, 782 (1st Cir. 2015) (quoting\\n\\nUSSG §2B1.1, cmt. (bckg'd)).\\n\\n Restitution is a horse of a different hue, serving a\\n\\nwholly different purpose. It \\\"is designed to compensate the\\n\\nvictim, not to punish the offender.\\\" Naphaeng, 906 F.3d at 179.\\n\\nMoreover, restitution deals exclusively with losses actually\\n\\nsustained and (unlike amount of loss calculations) makes no\\n\\nprovision for intended loss. See Alphas, 785 F.3d at 786. To\\n\\n\\n - 41 -\\n\\fthat end, the MVRA directs that restitution shall be made \\\"to each\\n\\nvictim in the full amount of each victim's losses as determined by\\n\\nthe court.\\\" 18 U.S.C. § 3664(f)(1)(A). And whereas loss\\n\\ncalculations require only a reasonable estimate of the range of\\n\\nloss, see Curran, 525 F.3d at 78, the entire amount of restitution\\n\\nmust be supported — albeit only by \\\"a modicum of reliable\\n\\nevidence,\\\" United States v. Vaknin, 112 F.3d 579, 587 (1st Cir.\\n\\n1997).\\n\\n We generally review preserved challenges to restitution\\n\\norders for abuse of discretion. See Naphaeng, 906 F.3d at 179.\\n\\nUnpreserved challenges are, at best, reviewed for plain error.\\n\\nSee United States v. Sánchez-Maldonado, 737 F.3d 826, 828 (1st\\n\\nCir. 2013). Here, Flete-Garcia objected to the restitution section\\n\\nin the PSI Report, but he did not renew this objection either in\\n\\nhis sentencing memorandum or at the disposition hearing. We thus\\n\\ntreat his challenge to the restitution order as forfeited and\\n\\nreview it only for plain error.7 See Duarte, 246 F.3d at 60.\\n\\n Flete-Garcia's argument with respect to restitution is\\n\\nnebulous. His opening brief contends, in conclusory terms, that\\n\\n\\n 7The government insists that Flete-Garcia waived his\\nchallenge to the restitution order \\\"by remaining silent during the\\nsentencing hearing\\\" and, thus, that his claim of error is\\nunreviewable. See United States v. Rodriguez, 311 F.3d 435, 437\\n(1st Cir. 2002) (distinguishing between waived challenges and\\nforfeited challenges). We assume, favorably to Flete-Garcia, that\\nhis objection to the restitution order was merely forfeited, not\\nwaived.\\n\\n\\n - 42 -\\n\\f\\\"[t]he problems\\\" he had identified with respect to the government's\\n\\nloss calculations \\\"make clear that the evidence relied upon by the\\n\\n[district] court for the restitution order is flawed and thus\\n\\ninsufficient to support the restitution order.\\\" His reply brief\\n\\nreiterates that \\\"the loss figure [is] incorrect\\\" and that \\\"[t]he\\n\\nloss calculation is what drove the restitution amount.\\\" In effect,\\n\\nthen, he tries to copy and paste his loss-calculation arguments —\\n\\narguments that we already have rejected, see supra Part III(B) —\\n\\nin support of his restitution claim. He offers nothing that\\n\\nindicates an awareness of the differing criteria for loss\\n\\ncalculations and restitution calculations, nor does he attempt to\\n\\ntailor his amount of loss arguments to the restitution context.\\n\\nAt the end of the day, Flete-Garcia has left \\\"the court to do\\n\\ncounsel's work, create the ossature for the argument, and put flesh\\n\\non its bones.\\\" United States v. Zannino, 895 F.2d 1, 17 (1st Cir.\\n\\n1990).\\n\\n Flete-Garcia's failure to tailor his arguments to the\\n\\nrestitution context drains them of any force. As we have\\n\\nexplained, there are significant differences between the proper\\n\\nmethod of calculating loss and the proper method of calculating\\n\\nrestitution — a fact that is made starkly apparent by the\\n\\nsubstantial dollar differential between the district court's loss\\n\\ncalculation (approximately $12.7 million) and its restitution\\n\\naward (approximately $7.7 million). Flete-Garcia could have\\n\\n\\n - 43 -\\n\\fshaped his restitution argument accordingly. For example, he could\\n\\nhave argued (perhaps successfully) that the handful of checks\\n\\nDominguez admitted to cashing for another individual could not be\\n\\nincluded in computing the restitution order because that other\\n\\nfraudster's victims were not \\\"directly and proximately harmed\\\" by\\n\\nFlete-Garcia's malefactions. 18 U.S.C. § 3663A(a)(2). But Flete-\\n\\nGarcia did not advance that argument, either in the district court\\n\\nor on appeal, much less make any attempt to quantify the monetary\\n\\nvalue of the handful of checks. Given his default, there is no\\n\\nreason why we should make such an argument for him. See Zannino,\\n\\n895 F.2d at 17 (warning that \\\"a litigant has an obligation 'to\\n\\nspell out its arguments squarely and distinctly,' or else forever\\n\\nhold its peace\\\" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631,\\n\\n635 (1st Cir. 1988))); cf. Paterson-Leitch Co., Inc. v. Mass. Mun.\\n\\nWholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988) (\\\"Courts,\\n\\nlike the Deity, are most frequently moved to help those who help\\n\\nthemselves.\\\").\\n\\n Cognizant that a \\\"court's calculation of restitution is\\n\\nnot held to standards of scientific precision,\\\" Sánchez-Maldonado,\\n\\n737 F.3d at 828, we discern no plain error in the district court's\\n\\nrestitution order. The government introduced testimony from\\n\\nmultiple witnesses and detailed charts substantiating the $7.7\\n\\nmillion paid out by the IRS. The charts delineated particular\\n\\namounts of money, actually expended, based on each co-\\n\\n\\n - 44 -\\n\\fconspirator's bank records. The district court concluded that\\n\\nthis evidence laid a solid foundation for its restitution order.\\n\\n In the circumstances of this case, the standard of review\\n\\nis dispositive. As said, Flete-Garcia's challenges to the\\n\\nrestitution order are reviewable only for plain error — and \\\"[t]he\\n\\nproponent of plain error must carry the devoir of persuasion as to\\n\\neach of the four elements that collectively comprise the plain\\n\\nerror standard.\\\" United States v. Bramley, 847 F.3d 1, 5 (1st\\n\\nCir. 2017). Even if we assume for the sake of argument that there\\n\\nmay have been some error (perhaps an obvious error) in the district\\n\\ncourt's restitution calculation, Flete-Garcia has made no argument\\n\\nregarding the extent to which any such error affected that\\n\\ncalculation. He has not shown, for example, that the restitution\\n\\norder is off-target by, say, $100,000, or $50,000, or $5. Instead,\\n\\nhe makes generalized allegations that inaccuracies permeate the\\n\\nrestitution order — and he leaves it to us to do the juridical\\n\\nequivalent of an archeological dig and monetize his allegations.\\n\\n We have admonished before that parties act at their peril\\n\\nin leaving \\\"the court to do counsel's work,\\\" Zannino, 895 F.2d at\\n\\n17, and we are reluctant to reward such tactics. The third element\\n\\nof the plain error inquiry requires that an appellant demonstrate\\n\\n\\\"a reasonable probability that, but for the error, the outcome\\n\\nwould have been different.\\\" Bramley, 847 F.3d at 7. Flete-Garcia\\n\\nhas made no such demonstration but, rather, leaves us to work out\\n\\n\\n - 45 -\\n\\fhow the claimed errors — even if they apply in the restitution\\n\\ncontext — may affect the amount of restitution that the district\\n\\ncourt ordered. This causal approach to appellate advocacy —\\n\\nthrowing generalized scraps of information on the table and hoping\\n\\nthat the panel will make a meal of them — falls well short of what\\n\\nthe third element of plain error demands.\\n\\n Given Flete-Garcia's utter failure to carry his burden\\n\\nwith respect to the third element of the plain error inquiry, the\\n\\nfourth element also cuts against him. We think it evident that\\n\\nthe claimed errors, if left uncorrected, will not \\\"seriously\\n\\nimpair[] the fairness, integrity, or public reputation of judicial\\n\\nproceedings.\\\" Duarte, 246 F.3d at 60.\\n\\n The short of it is that we find no plain error.\\n\\nTherefore, we affirm the district court's restitution order.\\n\\nV. INEFFECTIVE ASSISTANCE OF COUNSEL\\n\\n In a final attempt to improve his lot, Flete-Garcia\\n\\ninsists that the representation provided by his trial counsel was\\n\\nineffective. See U.S. Const. amend. VI; see also Strickland v.\\n\\nWashington, 466 U.S. 668, 687 (1984). He offers vignettes\\n\\nillustrating his counsel's allegedly deficient performance —\\n\\nignoring him, withholding discovery materials from him, and\\n\\nfailing to make certain inquiries when cross-examining witnesses\\n\\n— and says that, as a result of this feckless representation, he\\n\\nfelt that he had no plausible alternative but to plead guilty.\\n\\n\\n - 46 -\\n\\fThis claim of error was never adjudicated in the district court:\\n\\nalthough Flete-Garcia made disparaging remarks about his trial\\n\\ncounsel's shortcomings and suggested that ineffective assistance\\n\\ncontributed to his decision to plead guilty, he never advanced a\\n\\nSixth Amendment claim. Consequently, no effort was made to develop\\n\\na record suitable for the adjudication of such a claim.\\n\\n \\\"We have held with a regularity bordering on the\\n\\nmonotonous that fact-specific claims of ineffective assistance of\\n\\ncounsel cannot make their debut on direct review of criminal\\n\\nconvictions, but, rather, must originally be presented to, and\\n\\nacted upon by, the trial court.\\\" United States v. Mala, 7 F.3d\\n\\n1058, 1063 (1st Cir. 1933). \\\"In adopting this prudential praxis,\\n\\nwe have reasoned that 'such claims typically require the resolution\\n\\nof factual issues that cannot efficaciously be addressed in the\\n\\nfirst instance by an appellate tribunal.'\\\" United States v.\\n\\nSantana-Dones, 920 F.3d 70, 82 (1st Cir. 2019) (quoting Mala, 7\\n\\nF.3d at 1063). In particular, \\\"questions about whether counsel's\\n\\nchallenged decisions were mistakes of a constitutional magnitude\\n\\nor simply reasonable strategic choices that did not pan out\\\"\\n\\nnormally can be answered only with the benefit of a developed\\n\\nrecord. United States v. Mercedes-De La Cruz, 787 F.3d 61, 66\\n\\n(1st Cir. 2015).\\n\\n To be sure, the Mala rule is not ironclad. On rare\\n\\noccasions, we have considered the merits of ineffective assistance\\n\\n\\n - 47 -\\n\\fof counsel claims raised for the first time on direct review. See,\\n\\ne.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).\\n\\nWe have limited this exception, though, to cases in which \\\"the\\n\\ncritical facts are not in dispute and the record is sufficiently\\n\\ndeveloped to allow reasoned consideration of the [ineffective\\n\\nassistance] claim.\\\" Mala, 7 F.3d at 1063.\\n\\n This case falls squarely within the general rule, not\\n\\nwithin the long-odds exception to it. The record is tenebrous as\\n\\nto critical issues, such as the content of the discovery (if any)\\n\\nFlete-Garcia received from trial counsel. Nor does the record\\n\\nindicate either why trial counsel elected not to cross-examine\\n\\nAdams or why he eschewed particular lines of inquiry when cross-\\n\\nexamining other government witnesses. There are both tactical and\\n\\nstrategic considerations that may have informed trial counsel's\\n\\ndecisions in this case, but the record sheds no light on trial\\n\\ncounsel's thinking. Consequently, the record does not tell us\\n\\nwhether trial counsel's decisions, when made, were calculated\\n\\nstratagems or amateurish blunders. Last — but far from least —\\n\\nthe record affords us no insight into what discussions took place\\n\\nbetween Flete-Garcia and his trial counsel regarding his decision\\n\\nto change his plea. Lacking a developed record that illuminates\\n\\nthese critical areas, we have no principled choice but to conclude\\n\\nthat the ineffective assistance of counsel claim is prematurely\\n\\nraised. See United States v. Miller, 911 F.3d 638, 646 (1st Cir.\\n\\n\\n - 48 -\\n\\f2018); United States v. Negrón-Narváez, 403 F.3d 33, 41 (1st Cir.\\n\\n2005). Accordingly, we dismiss the ineffective assistance of\\n\\ncounsel claim; without prejudice, however, to Flete-Garcia's\\n\\nright, if he so elects, to raise it through a petition for post-\\n\\nconviction relief under 28 U.S.C. § 2255.\\n\\nVI. CONCLUSION\\n\\n We need go no further.8 The record before us withstands\\n\\nFlete-Garcia's myriad claims of error. For aught that appears, he\\n\\nwas fairly tried, lawfully convicted, and appropriately sentenced\\n\\nin proceedings patiently conducted by an able trial judge.\\n\\nConsequently, we affirm the judgment of the district court; without\\n\\nprejudice, however, to Flete-Garcia's right to raise his\\n\\nineffective assistance of counsel claim in a collateral proceeding\\n\\npursuant to 28 U.S.C. § 2255.\\n\\n\\n\\nSo ordered.\\n\\n\\n\\n\\n 8On appeal, Flete-Garcia has adverted to some other issues.\\nWithout exception, those issues are insufficiently developed,\\nplainly without merit, or both. We see no need for extended\\ncomment but, rather, reject them out of hand.\\n\\n\\n - 49 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1972,"cells":{"id":{"kind":"number","value":4622722,"string":"4,622,722"},"name":{"kind":"string","value":"BIOCHEMICS, INC.; John Masiz, Plaintiffs, Appellants, v. AXIS REINSURANCE COMPANY, Defendant, Appellee. John P. Raucci; Brown & Brown of New York, Inc., Defendants."},"name_abbreviation":{"kind":"string","value":"Biochemics, Inc. v. Axis Reinsurance Company"},"decision_date":{"kind":"string","value":"2019-05-23"},"docket_number":{"kind":"string","value":"17-2059P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Thompson, Kayatta, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 17-2059\\n\\n BIOCHEMICS, INC.; JOHN MASIZ,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n AXIS REINSURANCE COMPANY,\\n\\n Defendant, Appellee.\\n\\n JOHN P. RAUCCI; BROWN & BROWN OF NEW YORK, INC.,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Rya W. Zobel, U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Steven L. Schreckinger, with whom Anderson & Kreiger LLP were\\non brief, for appellants.\\n Melinda B. Margolies, with whom Kaufman Borgeest & Ryan LLP,\\nWilliam A. Schneider, and Morrison Mahoney LLP were on brief, for\\nappellee.\\n\\n\\n May 23, 2019\\n\\f BARRON, Circuit Judge. This appeal concerns a 2013 suit\\n\\nthat BioChemics, Inc. (\\\"BioChemics\\\"), a pharmaceutical company\\n\\nbased in Massachusetts, and John Masiz (\\\"Masiz\\\"), its president\\n\\nand chief executive officer, brought in the District of\\n\\nMassachusetts to enforce a directors and officers (\\\"D&O\\\")\\n\\ninsurance policy (the \\\"Policy\\\") with AXIS Reinsurance Company\\n\\n(\\\"AXIS\\\"). BioChemics and Masiz seek damages for what they contend\\n\\nis AXIS's breach, under the Policy, of its \\\"duty to defend\\\" them\\n\\nin connection with a Securities and Exchange Commission (\\\"SEC\\\")\\n\\ninvestigation against the company and its officers.\\n\\n BioChemics and Masiz moved for partial summary judgment\\n\\nin 2013, and the District Court denied the motion. BioChemics,\\n\\nInc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64, 70-71 (D. Mass.\\n\\n2013). They filed a renewed motion for partial summary judgment\\n\\nin 2015, and AXIS cross-moved for summary judgment. AXIS contended\\n\\nin that motion that it did not breach its duty to defend under the\\n\\nPolicy because, among other things, BioChemics and Masiz were\\n\\nseeking to enforce that duty in relation to a \\\"Claim\\\" that -- given\\n\\nwhen the SEC investigation commenced -- was \\\"first made\\\" before\\n\\nthe Policy took effect and thus was not \\\"covered\\\" by the Policy.\\n\\nThe District Court granted AXIS's motion. BioChemics and Masiz\\n\\nnow appeal from the grant of summary judgment to AXIS. We affirm.\\n\\n\\n\\n\\n - 2 -\\n\\f I.\\n\\n The undisputed facts are the following. On May 5, 2011,\\n\\nthe SEC began a \\\"Non-Public Formal Investigation\\\" by issuing a\\n\\nFormal Order captioned \\\"In the Matter of BioChemics, Inc., B-02641\\\"\\n\\n(the \\\"2011 Order\\\"). The 2011 Order mentioned Masiz by name,\\n\\ndescribed him as the sole officer of the company, and identified\\n\\nseveral \\\"possible\\\" securities violations. These \\\"possible\\\"\\n\\nviolations included instances of fraud and misrepresentation,\\n\\nbeginning as early as 2009, that were aimed at distorting the value\\n\\nof BioChemics securities. The 2011 Order also noted that Masiz\\n\\nhad been sanctioned for securities violations in the past and that,\\n\\ndue to those sanctions, he had been barred from serving as an\\n\\nofficer or director of any publicly traded company until 2009.\\n\\n On May 9, 2011, and then again on September 12, 2011,\\n\\nthe SEC served subpoenas on BioChemics. The 2011 subpoenas\\n\\nrequested documents pertaining to, among other things, the\\n\\ncompany's finances, operations, drugs under development,\\n\\ninteractions with pharmaceutical companies, and payments to Masiz.\\n\\nThese subpoenas bore the same caption as the 2011 Order and\\n\\nexpressly referenced the 2011 Order as authorizing their issuance.\\n\\nIn a cover letter that accompanied the September 2011 subpoena,\\n\\nthe SEC stated that the \\\"investigation . . . should not be\\n\\nconstrued as an indication by the [SEC] that any violation of law\\n\\nhas occurred.\\\"\\n\\n\\n - 3 -\\n\\f After receiving the May 2011 subpoena, BioChemics\\n\\nretained legal counsel and a consulting firm to assist with its\\n\\nresponse. At that time, BioChemics had a D&O insurance policy\\n\\nwith Greenwich Insurance Company. BioChemics did not, at any\\n\\npoint, notify that insurer about the ongoing SEC investigation.\\n\\n In October of 2011, BioChemics and Masiz, in his\\n\\nindividual capacity, applied to have AXIS take over as the D&O\\n\\ninsurer for the policy period that ran from November 2011 to\\n\\nNovember 2012. In that application, BioChemics and Masiz\\n\\nrepresented that there were no legal claims pending against them.\\n\\nAXIS agreed to provide the D&O insurance for the requested policy\\n\\nperiod.\\n\\n In January of 2012, the SEC served deposition subpoenas\\n\\non Masiz and other individuals. In March of that same year, the\\n\\nSEC followed up by serving documents subpoenas on BioChemics and\\n\\nMasiz. Each of these 2012 subpoenas -- eight in total -- bore the\\n\\nsame caption as the 2011 Order and the 2011 subpoenas. One of\\n\\nthese subpoenas was served on Masiz in his individual capacity for\\n\\ndeposition testimony and one was served on him in his individual\\n\\ncapacity for document production.\\n\\n Finally, in December of 2012, the SEC commenced an\\n\\nEnforcement Action (\\\"2012 Action\\\") against BioChemics, Masiz, and\\n\\ntwo other individuals. The 2012 Action \\\"allege[d]\\\" that, beginning\\n\\nas early as 2009, Biochemics and Masiz had \\\"engaged in a fraudulent\\n\\n\\n - 4 -\\n\\fscheme\\\" to mislead investors about the company's value. At least\\n\\none of the \\\"allege[d]\\\" misrepresentations, concerning a topical\\n\\nibuprofen product, took place after the 2011 Order and the 2011\\n\\nsubpoenas were issued.\\n\\n After receiving the March 2012 documents subpoenas,\\n\\nBioChemics and Masiz notified AXIS of them, as well as of the\\n\\nsubpoenas that the SEC had issued in January of 2012. AXIS\\n\\n\\\"agree[d] that the SEC Investigation . . . constitute[d] a D&O\\n\\nClaim\\\" under the Policy. AXIS asserted, however, that BioChemics\\n\\nand Masiz were necessarily seeking -- given the terms of the\\n\\nPolicy -- \\\"coverage\\\" for a single \\\"Claim\\\" that encompassed the SEC\\n\\ninvestigation as a whole and that this \\\"Claim\\\" was \\\"first made\\\" in\\n\\nMay of 2011 when the SEC issued the documents subpoena to\\n\\nBioChemics and thus that this \\\"Claim\\\" was \\\"first made\\\" \\\"prior to\\n\\nthe inception of the Policy Period.\\\"1 On the basis of that\\n\\nassertion, AXIS stated that \\\"because the Claim was not made during\\n\\nthe Policy Period, coverage is not available for the SEC\\n\\nInvestigation.\\\"\\n\\n AXIS later took the same position with respect to the\\n\\n2012 Action. It concluded that the 2012 Action was also part of\\n\\nthe same single \\\"Claim\\\" that was \\\"first made\\\" when the SEC issued\\n\\n\\n\\n\\n 1BioChemics and Masiz had not informed the insurer about the\\n2011 Order at the time that AXIS denied coverage.\\n\\n\\n - 5 -\\n\\fthe May 2011 documents subpoena, which was prior to the start of\\n\\nthe policy period.\\n\\n In response, on February 27, 2013, BioChemics and Masiz\\n\\nsued AXIS in Massachusetts Superior Court. BioChemics and Masiz\\n\\nalleged breach of contract and breach of fiduciary duty, under\\n\\nMassachusetts law, based on the contention that AXIS had breached\\n\\nits duty to defend under the Policy. The case was subsequently\\n\\nremoved to the United States District Court for the District of\\n\\nMassachusetts based on diversity jurisdiction. 28 U.S.C. § 1332.\\n\\nBioChemics and Masiz filed a Motion for Partial Summary Judgment\\n\\nin the District Court on June 5, 2013. They argued that each of\\n\\nwhat they contended were the \\\"Claim[s]\\\" that triggered AXIS's duty\\n\\nto defend under the Policy -- respectively, each of the 2012\\n\\nsubpoenas and the 2012 Action -- had been brought by the SEC after\\n\\nthe policy period began to run and thus was \\\"first made\\\" within\\n\\nthe policy period.\\n\\n The District Court denied that motion in August of 2013.\\n\\nBioChemics, Inc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64 (D.\\n\\nMass. 2013). In reaching this decision, the District Court did\\n\\nnot address the relevance of the 2011 Order, as BioChemics and\\n\\nMasiz had not yet disclosed the 2011 Order to AXIS or the District\\n\\nCourt.\\n\\n On February 14, 2014, BioChemics and Masiz filed a\\n\\nrenewed Motion for Partial Summary Judgment. They again argued\\n\\n\\n - 6 -\\n\\fthat, under the Policy, AXIS had a duty to defend that was\\n\\ntriggered by \\\"Claim[s]\\\" -- each of the 2012 subpoenas and the 2012\\n\\nAction -- that had been \\\"first made\\\" during the policy period.\\n\\nAXIS cross-filed a Motion for Summary Judgment. AXIS argued that\\n\\nit had no such duty because, among other things, the SEC filings\\n\\nwere properly treated as a single \\\"Claim\\\" that had been \\\"first\\n\\nmade\\\" when the SEC issued the May 2011 documents subpoena and thus\\n\\nthat was \\\"first made\\\" prior to the policy period.\\n\\n On January 6, 2015, the District Court entered an order\\n\\ngranting AXIS's Motion for Summary Judgment and denying BioChemics\\n\\nand Masiz's Motion for Partial Summary Judgment. BioChemics, Inc.\\n\\nv. Axis Reinsurance Co., 83 F. Supp. 3d 405 (D. Mass. 2015)\\n\\n[hereinafter BioChemics II]. By that time, the District Court had\\n\\nbeen made aware of the 2011 Order. Equipped with that knowledge,\\n\\nthe District Court held that the 2012 Action, and the multiple\\n\\n2012 subpoenas, were all part of a \\\"Claim\\\" that had been \\\"first\\n\\nmade\\\" when the 2011 Order issued (May 5, 2011). Id. at 408.\\n\\nBioChemics and Masiz then appealed the District Court's order.2\\n\\n\\n\\n\\n 2 The Policy sets forth AXIS's \\\"duty to defend\\\" and its duty\\nto cover \\\"defense costs\\\" under separate provisions. BioChemics\\nand Masiz's complaint requested the recovery only of \\\"damages\\ncaused by [AXIS's] breach of . . . its duty to defend.\\\" We proceed\\non the understanding that the parties, in referring to \\\"coverage\\\"\\nunder the Policy, are referring to AXIS's duty to defend.\\n\\n\\n - 7 -\\n\\f II.\\n\\n The Policy incorporates four separate Insuring\\n\\nAgreements: the D&O Corporate Liability Agreement, the Employment\\n\\nPractices Liability Agreement, the Fiduciary Liability Agreement,\\n\\nand the Outside Executive Liability Agreement. The only agreement\\n\\nthat is at issue in this appeal is the D&O Corporate Liability\\n\\nAgreement.\\n\\n That agreement obligates AXIS to cover \\\"all Loss on\\n\\nbehalf of any Insured arising from any D&O Claim for a Wrongful\\n\\nAct . . . first made against such Insured . . . during the Policy\\n\\nPeriod .\\\"3 The Policy defines \\\"Loss\\\" as \\\"the amount(s) which the\\n\\nInsureds become legally obligated to pay on account of a Claim,\\n\\nincluding damages, judgments, any award of pre-judgment and post-\\n\\njudgment interest, settlement amounts, costs and fees awarded\\n\\npursuant to judgments, and Defense Costs.\\\" (Emphasis added). The\\n\\nPolicy separately provides that AXIS has \\\"both the right and duty\\n\\nto defend and appoint counsel with respect to any Claim made\\n\\nagainst the Insureds alleging a Wrongful Act, even if such a Claim\\n\\nis groundless, false or fraudulent.\\\"\\n\\n The Policy defines a \\\"D&O Claim\\\" as:\\n\\n a. a written demand against an Insured for\\n monetary or nonmonetary relief;\\n\\n\\n\\n 3 The policy period ran from November 13, 2011 to November\\n13, 2013.\\n\\n\\n - 8 -\\n\\f b. a civil, arbitration, administrative or\\n regulatory proceeding against any Insured\\n commenced by:\\n (i) the service of a complaint or similar\\n pleading;\\n (ii) the filing of a notice of charge,\\n investigative order or like document; or\\n (iii) written notice or subpoena from an\\n authority identifying such Insured as an\\n entity or person against whom a formal\\n proceeding may be commenced; or\\n c. a criminal investigation or proceeding\\n against any Insured Individual commenced by:\\n (i) the return of an indictment, information,\\n or similar pleading; or\\n (ii) written notice or subpoena from an\\n authority identifying such Insured Individual\\n as an individual against whom a formal\\n proceeding may be commenced.\\n\\n A \\\"Wrongful Act,\\\" in turn, is defined as \\\"any actual or\\n\\nalleged error, misstatement, misleading statement, act, omission,\\n\\nneglect, or breach of duty.\\\"\\n\\n There is one more provision that is important for present\\n\\npurposes. Under the Policy's \\\"Limits of Liability\\\" heading, there\\n\\nis a provision [hereinafter \\\"Interrelated Wrongful Acts\\n\\nProvision\\\"] that states:\\n\\n All Claims, including all D&O Claims . . .\\n arising from the same Wrongful Act, Wrongful\\n Third Party Act, and all Interrelated Wrongful\\n Acts shall be deemed one Claim and such Claim\\n shall be deemed to be first made on the earlier\\n date that: (1) any of the Claims is first made\\n against an Insured under this Policy or any\\n prior policy, or (2) valid notice was given by\\n the Insureds under this Policy or any prior\\n policy of any Wrongful Act, Wrongful Third\\n Party Act, or any fact, circumstance,\\n situation, transaction or cause which\\n underlies such Claim. Coverage under this\\n\\n\\n - 9 -\\n\\f Policy shall apply only with respect to Claims\\n deemed to have been first made during the\\n Policy Period and reported in writing to the\\n Insurer in accordance with the terms herein.\\n\\nThe Policy earlier separately defines \\\"Interrelated Wrongful Acts\\\"\\n\\nas \\\"any and all Wrongful Acts that have as a common nexus any fact,\\n\\ncircumstance, situation, event, transaction, cause or series of\\n\\ncausally or logically connected facts, circumstances, situations,\\n\\nevents, transactions or causes.\\\"4\\n\\n With that background in place, we now turn to the merits\\n\\nof the parties' contentions. Because we are reviewing a grant of\\n\\nsummary judgment to AXIS, we must affirm the order below if there\\n\\nis no genuine issue of material fact and AXIS is entitled to\\n\\njudgment as a matter of law. See Utica Mut. Ins. Co. v. Herbert\\n\\nH. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir. 2016). Our\\n\\nreview is de novo. See id. Moreover, in this case, only \\\"the\\n\\ninterpretation and application of the [insurance] policy language\\\"\\n\\nare in dispute. Massamont Ins. Agency, Inc. v. Utica Mut. Ins.\\n\\nCo., 489 F.3d 71, 72 (1st Cir. 2007) (citation omitted). We review\\n\\nthose issues of interpretation and application de novo as well.\\n\\nId.\\n\\n\\n\\n\\n 4\\n The Policy also includes a section on \\\"Exclusions\\\" outlining\\nseveral circumstances under which AXIS will not bear liability for\\n\\\"Claims\\\" against the insured parties. However, it appears that\\nneither party argues that any of these \\\"Exclusions\\\" apply to the\\ninstant matter.\\n\\n\\n - 10 -\\n\\f III.\\n\\n BioChemics and Masiz, the appellants, begin by\\n\\ncontending that the District Court erred in ruling that the \\\"Claim\\\"\\n\\nthat triggered AXIS's duty to defend had been \\\"first made\\\" when\\n\\nthe SEC issued the 2011 Order in May of that year -- and thus prior\\n\\nto the start of the policy period, which began in November of 2011.\\n\\nThe appellants contend that the District Court based that ruling\\n\\nsolely on a construction of the definition of \\\"D&O Claim\\\" in the\\n\\nPolicy and thus without reference to the Interrelated Wrongful\\n\\nActs Provision. The appellants then go on to contend that this\\n\\nconstruction of the definition of \\\"D&O Claim\\\" was mistaken.\\n\\n To make that case, the appellants assert that the Policy\\n\\ndefines a \\\"D&O Claim\\\" in a way that makes the 2011 Order, each of\\n\\nthe various subpoenas issued in its wake, and the 2012 Action a\\n\\n\\\"Claim\\\" in its own right, rather than merely components of a\\n\\n\\\"Claim\\\" that encompasses the SEC investigation as a whole. Thus,\\n\\nthe appellants contend, the District Court's sole reason for\\n\\ntreating the 2012 subpoenas and the 2012 Action as part of a\\n\\n\\\"Claim\\\" that was \\\"first made\\\" when the SEC issued the 2011 Order\\n\\nand thus before the policy period began rests on a mistaken\\n\\nconstruction of the Policy's definition of a \\\"D&O Claim.\\\"\\n\\n The appellants appear to rely for their argument about\\n\\nthe nature of the District Court's reasoning on the following\\n\\nportions of the District Court's ruling:\\n\\n\\n - 11 -\\n\\f The policy here defines a \\\"Claim\\\" broadly to\\n include, inter alia, any \\\"civil, arbitration,\\n administrative or regulatory proceeding\\n against any Insured commenced by . . . the\\n filing of a notice of charge, investigative\\n order, or like document.\\\" The triggering\\n events are all part of a single SEC\\n Investigation under the Formal Order. Each\\n subpoena was issued under, and referred to,\\n the original Formal Order, and investigated\\n the same officers and company for the same\\n pattern of security violations through public\\n material misstatements. Under the clear\\n language of the Policy, and on the record\\n before the [C]ourt, the subpoenas all\\n constituted a single \\\"Claim\\\" under the policy.\\n\\n The only remaining question is whether the\\n Claim at issue is covered under the AXIS\\n policy. A Claim is only covered under the\\n policy if \\\"deemed to have been first made\\n during the Policy Period.\\\" A claim \\\"shall be\\n deemed to be first made on the earlier date\\n that: (1) any of the Claims is first made\\n against an Insured under this Policy or any\\n prior policy . . . .\\\" Docket # 30, Ex. A\\n (Policy) § V.A. The Formal Order issued on\\n May 5, 2011. The policy went into effect on\\n November 13, 2011. The investigation and\\n enforcement action, the Claim at issue, was\\n thus \\\"first made\\\" before the policy period and\\n is, therefore, not covered under the policy.\\n\\nBioChemics II, 83 F. Supp. 3d at 407-08 (internal citations\\n\\nomitted) (alterations in original).\\n\\n The problem with the appellants' argument is that the\\n\\nDistrict Court does not purport in these passages to rely solely\\n\\non the Policy's definition of a \\\"D&O Claim\\\" to reach the conclusion\\n\\nthat the 2011 Order, the subpoenas, and the 2012 Action are part\\n\\nand parcel of one \\\"Claim.\\\" Rather, the District Court explains in\\n\\n\\n\\n - 12 -\\n\\fthis passage that the 2012 Action may be deemed to be part of one\\n\\n\\\"Claim\\\" that was \\\"first made\\\" prior to the start of the policy\\n\\nperiod by citing to the portion of the Interrelated Wrongful Acts\\n\\nProvision that states that \\\"[a] Claim 'shall be deemed to be first\\n\\nmade on the earlier date that: (1) any of the Claims is first made\\n\\nagainst an Insured under this Policy or any prior policy.'\\\" Id.\\n\\nat 408 (citing \\\"§ V.A\\\" of the Policy -- the Interrelated Wrongful\\n\\nActs Provision) (alteration in original).\\n\\n In other words, the District Court appears to have\\n\\nconcluded that, pursuant to the Policy's definition of a \\\"D&O\\n\\nClaim,\\\" the 2012 Action constitutes a \\\"Claim\\\" that was distinct\\n\\nfrom the \\\"Claim\\\" of which the 2011 Order was a part. But, the\\n\\nDistrict Court then went on to conclude, those two otherwise\\n\\ndistinct \\\"Claim[s]\\\" must be deemed to be \\\"one Claim\\\" pursuant to\\n\\nthe Interrelated Wrongful Acts Provision.\\n\\n Thus, the appellants' contention that the District Court\\n\\nerred in treating the 2012 Action as part of a \\\"Claim\\\" that was\\n\\n\\\"first made\\\" before the start of the policy period because the\\n\\nDistrict Court relied on a mistaken construction of the Policy's\\n\\ndefinition of a \\\"D&O Claim\\\" fails for a simple reason. The\\n\\nDistrict Court did not base its conclusion as to the 2012 Action\\n\\non that allegedly erroneous ground.\\n\\n We still must address, though, the appellants'\\n\\ncontention that the District Court erred by construing the Policy's\\n\\n\\n - 13 -\\n\\fdefinition of a \\\"D&O Claim\\\" to make each of the 2012 subpoenas\\n\\nmerely a component of a \\\"Claim\\\" that \\\"commenced\\\" with the issuance\\n\\nof the 2011 Order and not a \\\"Claim\\\" in its own right. Here, too,\\n\\nwe reject the argument.\\n\\n The Policy's definition of a \\\"D&O Claim\\\" is set forth in\\n\\nSection III.B.2 of the Policy. As we have noted above, that\\n\\nprovision defines a \\\"D&O Claim,\\\" as relevant here, to include\\n\\neither \\\"a written demand . . . for . . . non-monetary relief\\\" or\\n\\n\\\"a civil . . . administrative or regulatory proceeding against any\\n\\nInsured commenced by\\\":\\n\\n (i) the service of a complaint or similar\\n pleading;\\n (ii) the filing of a notice of charge,\\n investigative order or like document; or\\n (iii) written notice or subpoena from an\\n authority identifying such Insured as an\\n entity or person against whom a formal\\n proceeding may be commenced.\\n\\n The appellants contend that the first component of this\\n\\ntwo-part definition of a \\\"D&O Claim\\\" -- the \\\"written\\n\\ndemand . . . for . . . non-monetary relief\\\" -- encompasses each of\\n\\nthe 2012 subpoenas. The appellants thus contend that this\\n\\ncomponent of the definition renders each subpoena a \\\"Claim\\\" in its\\n\\nown right.\\n\\n Black's Law Dictionary, however, defines \\\"relief\\\" as\\n\\n\\\"[t]he redress or benefit, esp. equitable in nature (such as an\\n\\ninjunction or specific performance) that a party asks of a court.\\\"\\n\\n\\n\\n - 14 -\\n\\fRelief, Black's Law Dictionary (10th ed. 2009) (emphasis added);\\n\\nsee Metro. Prop. & Cas. Ins. Co. v. Morrison, 951 N.E.2d 662, 671\\n\\n(Mass. 2011) (instructing courts to construe clear policy language\\n\\naccording to its \\\"usual and ordinary sense\\\"). The 2012 subpoenas\\n\\nwere requests made of a party for information. They were not\\n\\nrequests made of a court for equitable redress or benefit, such as\\n\\nspecific performance. See Diamond Glass Cos., Inc. v. Twin City\\n\\nFire Ins. Co, No. 06-CV-13105, 2008 WL 4613170, at *4 (S.D.N.Y.\\n\\nAug. 18, 2008) (noting that, based on the \\\"plain meaning of\\n\\nrelief,\\\" a subpoena would not constitute a \\\"demand[ ] for\\n\\nnon-monetary relief\\\" (internal quotation marks omitted)). Thus,\\n\\nthe text of the component of the definition on which the appellants\\n\\nrely would appear to refute their position that the definition of\\n\\na \\\"D&O Claim\\\" treats each subpoena as a \\\"Claim\\\" in its own right.\\n\\n The rest of the definition reinforces that conclusion.\\n\\nSee Starr v. Fordham, 648 N.E.2d 1261, 1269 (Mass. 1995) (noting\\n\\nthat contract language must be interpreted in the context of the\\n\\nentire document). The second component of the definition concerns\\n\\n\\\"a civil . . . administrative or regulatory proceeding.\\\" That\\n\\ncomponent of the definition expressly refers to \\\"subpoena[s],\\\"\\n\\nwhile the component of the definition on which the appellants rely\\n\\ndoes not. The second component of the definition thus makes clear\\n\\nthat \\\"subpoenas\\\" are components of the \\\"Claim\\\" that \\\"a civil\\n\\nproceeding\\\" against an insured constitutes.\\n\\n\\n - 15 -\\n\\f For this reason, the appellants' preferred construction\\n\\nof the definition necessarily has the following odd consequence.\\n\\nIt requires us to construe a portion of that definition that does\\n\\nnot mention subpoenas at all as if it makes them \\\"Claim[s]\\\" in\\n\\ntheir own right, even though the portion of the definition that\\n\\nexpressly mentions subpoenas treats them as if they are merely\\n\\ncomponents of a \\\"Claim.\\\" Cf. J.A. Sullivan Corp. v. Commonwealth,\\n\\n494 N.E.2d 374, 378 (Mass. 1986) (noting that every phrase in a\\n\\ncontract must be given meaning that, when interpreted relative to\\n\\nother provisions in the document, gives the contract \\\"workable and\\n\\nharmonious\\\" effect (quoting Charles I. Hosmer, Inc. v.\\n\\nCommonwealth, 19 N.E.2d 800, 804 (Mass. 1939))).5\\n\\n The appellants do point to out-of-jurisdiction cases\\n\\nthat have held that a subpoena, like those at issue here, is itself\\n\\na \\\"Claim\\\" under other D&O insurance policies. See Polychron v.\\n\\nCrum & Forster Ins. Co., 916 F.2d 461, 463 (8th Cir. 1990);\\n\\nMinuteman Int'l, Inc. v. Great Am. Ins. Co., No. 03 C 6067, 2004\\n\\nWL 603482, at *5 (N.D. Ill. Mar. 22, 2004). But, neither of these\\n\\nprecedents is controlling, as neither was decided by a\\n\\nMassachusetts court applying Massachusetts law. Nor does either\\n\\n\\n\\n 5 The appellants' preferred construction presents an\\nadditional complication. Even if we assumed that subpoenas are\\n\\\"Claims\\\" in their own right, that conclusion does not, on its own,\\nimbue them with \\\"actual or alleged\\\" \\\"errors\\\" such that they state\\n\\\"Wrongful Acts\\\" and trigger the duty to defend under the Policy.\\n\\n\\n - 16 -\\n\\fcase, by terms, purport to be interpreting a policy that\\n\\ndenominates subpoenas to be components of \\\"Claims\\\" as expressly as\\n\\nthe Policy does here, let alone explain how such a policy could be\\n\\nconstrued to permit a subpoena such as those at issue here to be\\n\\ndeemed a \\\"Claim\\\" in its own right. In fact, multiple other courts\\n\\nhave reached the opposite conclusion. See Trice v. Emp'rs\\n\\nReinsurance Corp., 124 F.3d 205 (Table), 1997 WL 449736, *3 (7th\\n\\nCir. 1997); National Fire Ins. v. Bartolazo, 27 F.3d 518, 519 (11th\\n\\nCir. 1994); Diamond Glass Cos., 2008 WL 4613170, at *4.\\n\\n Thus, while we are mindful that we must construe\\n\\nambiguous policy language to favor coverage, see Metro. Prop. &\\n\\nCas. Ins. Co., 951 N.E.2d at 671 (setting forth the interpretive\\n\\nprinciple -- known as contra proferentem -- that ambiguous contract\\n\\nlanguage should be interpreted in favor of coverage against the\\n\\ndrafter), we conclude that the Policy here is simply too clear in\\n\\nthe relevant respect to permit us to do so. See id. (instructing\\n\\ncourts to construe clear policy language according to its \\\"usual\\n\\nand ordinary sense\\\" (internal quotation marks omitted)).\\n\\nAccordingly, we reject this aspect of the appellants' challenge to\\n\\nthe District Court's summary judgment ruling.\\n\\n IV.\\n\\n The appellants next contend that, insofar as the\\n\\nDistrict Court did rely on the Interrelated Wrongful Acts Provision\\n\\nto conclude that they were bringing a \\\"Claim\\\" that was \\\"first made\\\"\\n\\n\\n - 17 -\\n\\fwhen the SEC issued the 2011 Order, the District Court erred in\\n\\ndoing so. The appellants offer a variety of reasons for reaching\\n\\nthat conclusion. But, we do not find any of them to be persuasive.\\n\\n A.\\n\\n The appellants' first argument is premised on the fact\\n\\nthat the Interrelated Wrongful Acts Provision appears only within\\n\\nthe section of the Policy entitled \\\"Limits of Liability.\\\" The\\n\\nappellants contend that, because Massachusetts law requires that\\n\\nambiguities be construed in favor of coverage, see id., the\\n\\nprovision's placement requires that we construe it to address only\\n\\nthe \\\"amount of coverage available\\\" and not the availability of\\n\\n\\\"coverage.\\\" For that reason, the appellants contend, the\\n\\nInterrelated Wrongful Acts Provision cannot serve as the basis for\\n\\na conclusion that the \\\"Claim\\\" at issue was \\\"first made\\\" when the\\n\\nSEC issued the 2011 Order such that AXIS did not breach its duty\\n\\nto defend.\\n\\n The text of the Interrelated Wrongful Acts Provision,\\n\\nhowever, is at odds with the appellants' restricted construction\\n\\nof its import. The text of the provision states that \\\"[c]overage\\n\\nunder this Policy shall apply only with respect to Claims deemed\\n\\nto have been first made during the Policy Period.\\\" It is unclear\\n\\nwhat purpose this sentence would serve if the appellants' proposed\\n\\nconstruction were correct. Section VIII.L of the Policy, moreover,\\n\\nexpressly states that \\\"[t]he descriptions in the headings and\\n\\n\\n - 18 -\\n\\fsubheadings of this Policy are solely for convenience, and form no\\n\\npart of the terms and conditions of coverage.\\\" Thus, we read the\\n\\nprovision to mean just what it says. It addresses \\\"coverage under\\n\\nthis Policy\\\" rather than merely the limits of liability. See id.6\\n\\n B.\\n\\n The appellants also contend that the terms of the\\n\\nInterrelated Wrongful Acts Provision simply do not permit the\\n\\ndistinct \\\"Claim[s]\\\" that the appellants contend triggered AXIS's\\n\\nduty to defend under the Policy -- namely, each of the 2012\\n\\nsubpoenas and the Action -- to be \\\"deemed\\\" to be part and parcel\\n\\nof \\\"one Claim\\\" that was \\\"first made\\\" before the start of the policy\\n\\nperiod. But, we do not find the various arguments that the\\n\\nappellants make in support of this aspect of their challenge to\\n\\nthe grant of summary judgment to AXIS to be persuasive either.\\n\\n 1.\\n\\n The appellants first argue that, even if the 2011 Order\\n\\nmay be understood to refer to an \\\"error, misstatement, misleading\\n\\nstatement, act, omission, neglect, or breach of duty,\\\" it does not\\n\\n\\n 6 Our Court's holding construing Puerto Rico law in Lind-\\nHernández v. Hospital Episcopal San Lucas Guayama, 898 F.3d 99\\n(1st Cir. 2018), is not to the contrary. The Limits of Liability\\nprovision at issue there contained different language, and, in any\\nevent, Lind-Hernández held only that the placement of the\\n\\\"Interrelated Wrongful Acts\\\" provision in the Policy's \\\"Limits of\\nLiability\\\" section did not indicate that the insurer could use the\\nprovision to aggregate \\\"Claims\\\" that were levied against different\\ninsured parties who fell under different insuring agreements. Id.\\nat 108. No such issue is presented here.\\n\\n\\n - 19 -\\n\\f\\\"allege[]\\\" one, as the Policy's definition of a \\\"Wrongful Act\\\"\\n\\nrequires. If that is so, the appellants then contend, the 2011\\n\\nOrder contains no \\\"Wrongful Acts,\\\" which means, in turn, that there\\n\\nis no basis for concluding that either the 2012 Action or any of\\n\\nthe 2012 subpoenas contains \\\"Wrongful Acts\\\" that \\\"share[] a common\\n\\nnexus\\\" with any \\\"Wrongful Acts\\\" set forth in the 2011 Order.\\n\\nAccordingly, the appellants contend, the Interrelated Wrongful\\n\\nActs Provision supplies no basis for treating any of the discrete\\n\\n2012 SEC filings -- whether the 2012 Action or any of the 2012\\n\\nsubpoenas -- as if it constitutes one unified \\\"Claim\\\" with the\\n\\n2011 Order, such that the resulting unified \\\"Claim\\\" was \\\"first\\n\\nmade\\\" prior to the start of the policy period.\\n\\n The 2011 Order quite clearly refers to various actions\\n\\nthat, if they occurred, would constitute violations of the federal\\n\\nsecurities laws and thus constitute an \\\"error, misstatement,\\n\\nmisleading statement, act, omission, neglect, or breach of duty\\\"\\n\\nwithin the meaning of the Policy's definition of \\\"Wrongful Acts.\\\"\\n\\nFor example, the 2011 Order clearly stated that the SEC was\\n\\ninvestigating possible violations of Sections 5(a), 5(c), and\\n\\n17(a) of the Securities Act and Rule 10b-5, as well as Section\\n\\n15(a) of the Exchange Act. These possible violations included\\n\\n\\\"making false statements of material fact or failing to disclose\\n\\nmaterial facts concerning . . . BioChemics' business prospects\\n\\n\\n\\n\\n - 20 -\\n\\f(including products under development and agreements that the\\n\\ncompany has entered into).\\\"\\n\\n But, there remains the question of whether the 2011 Order\\n\\nin referring to such misconduct \\\"allege[s]\\\" it, as it must in order\\n\\nto contain a \\\"Wrongful Act,\\\" given that the Policy defines a\\n\\n\\\"Wrongful Act\\\" as \\\"any actual or alleged error, misstatement,\\n\\nmisleading statement, act, omission, neglect, or breach of duty.\\\"\\n\\n(Emphasis added).7\\n\\n With respect to their contention that the 2011 Order\\n\\ncontains no such allegations, the appellants point out that the\\n\\n2011 Order simply noted that the SEC \\\"ha[d] information that\\n\\ntend[ed] to show\\\" that violations had occurred. The appellants\\n\\nnote, too, that the 2011 Order goes on to list what it describes\\n\\nas merely \\\"possible\\\" violations where certain persons \\\"may have\\n\\nbeen\\\" engaging in actions that ran afoul of various securities\\n\\nlaws. Moreover, in the letter accompanying the September 2011\\n\\n\\n\\n 7\\n A \\\"Wrongful Act\\\" is defined with reference to whether there\\nis \\\"any . . . alleged error, misstatement, misleading statement,\\nact, omission, neglect, or breach of duty,\\\" even though the duty\\nto defend provision refers to \\\"any Claim made against the Insureds\\nalleging a Wrongful Act.\\\" (Emphases added). The parties in the\\ncourse of their briefs frequently refer to whether the 2011 Order\\nand the subpoenas \\\"allege[]\\\" any \\\"Wrongful Acts.\\\" Considered in\\ncontext, we understand those references to be intended to address\\nwhether those documents contain \\\"any . . . alleged error,\\nmisstatement, misleading statement, act, omission, neglect, or\\nbreach of duty\\\" and not the more metaphysical question of whether\\nthose documents \\\"allege[]\\\" \\\"an alleged error, misstatement,\\nmisleading statement, act, omission, neglect, or breach of duty.\\\"\\n\\n\\n - 21 -\\n\\fsubpoena, the appellants emphasize, the SEC pointedly noted that\\n\\nthe \\\"investigation . . . should not be construed as an indication\\n\\nby the [SEC] that any violation of law has occurred.\\\"\\n\\n To show that these qualified references to misconduct in\\n\\nthe 2011 Order do not \\\"allege[]\\\" that misconduct, the appellants\\n\\ncite to cases that conclude that similar investigative filings did\\n\\nnot \\\"allege\\\" the misconduct referenced in them. See Emp'rs' Fire\\n\\nIns. Co. v. ProMedica Health Sys., Inc., 524 F. App'x. 241, 247\\n\\n(6th Cir. 2013); MusclePharm Corp. v. Liberty Ins. Underwriters,\\n\\nInc., 712 F. App'x. 745, 756 (10th Cir. 2017). But other courts\\n\\nhave held just the opposite. See Patriarch Partners, LLC v. AXIS\\n\\nIns. Co., 16-CV-2277 (VEC), 2017 WL 4233078, at *6 (S.D.N.Y. Sept.\\n\\n22, 2017); Weaver v. Axis Surplus Ins. Co., No. 13-CV-7374 (SJF),\\n\\n2014 WL 5500667, at *12 (E.D.N.Y. Oct. 30, 2014), aff'd, 639 F.\\n\\nApp'x. 764 (2d Cir. 2016); Nat'l Stock Exch. v. Fed. Ins. Co., No.\\n\\n06 C 1603, 2007 WL 1030293, at *5 (N.D. Ill. Mar. 30, 2007); Morden\\n\\nv. XL Specialty Ins., 177 F. Supp. 3d 1320, 1330 (D. Utah 2016).\\n\\nMoreover, none of these precedents are from Massachusetts courts\\n\\nconstruing Massachusetts law. Nor is the word \\\"allege[]\\\" in and\\n\\nof itself so clearly restrictive that -- simply by virtue of that\\n\\nword -- the Policy must be construed to ensure that it does not\\n\\nprovide coverage for any loss arising from, or trigger the duty to\\n\\ndefend against, an SEC Order of the sort that is at issue here.\\n\\nAnd the appellants develop no argument to the contrary. Thus, it\\n\\n\\n - 22 -\\n\\fis certainly not clear that the 2011 Order fails to \\\"allege[]\\\" any\\n\\n\\\"Wrongful Acts.\\\"\\n\\n The appellants may mean to argue that the term \\\"alleged\\\"\\n\\nin the Policy's definition of \\\"Wrongful Acts\\\" is at least ambiguous\\n\\nas to whether it encompasses the qualified references to the\\n\\nmisconduct that the 2011 Order contains and thus that their\\n\\nproposed construction prevails due to the contra proferentem\\n\\ninterpretive rule. But we do not see how such an argument can\\n\\nsucceed in this case.\\n\\n To be sure, ambiguities must be construed in favor of\\n\\ncoverage for the insured. See Metro. Prop. & Cas. Ins. Co., 951\\n\\nN.E.2d at 671. But, as AXIS notes, the appellants seek in this\\n\\nvery case to show that the 2012 subpoenas triggered AXIS's duty to\\n\\ndefend under the Policy, even though the Policy is clear that a\\n\\n\\\"Claim\\\" must \\\"allege[]\\\" a \\\"Wrongful Act\\\" in order for it to trigger\\n\\nthe duty to defend. As a result, the 2012 subpoenas could be\\n\\ncovered under the Policy only if the word \\\"allege[]\\\" could be\\n\\nconstrued to encompass an SEC investigative filing that makes no\\n\\nmention of \\\"Wrongful Acts\\\" and merely refers back to a filing that\\n\\ndenotes them in a qualified manner. As favorable as the contra\\n\\nproferentem rule may be to insureds, the appellants may not rely\\n\\nupon that interpretive guide to advance an argument that would\\n\\nrequire us to construe the same word -- here, \\\"allege[]\\\" -- to\\n\\nmean two diametrically opposed things in this very case. Cf.\\n\\n\\n - 23 -\\n\\fHartford Cas. Ins. Co. v. Am. Dairy and Food Consulting Labs.,\\n\\nInc., No. 09–CV–00914–OWW–DLB, 2009 WL 4269603, at *12 (E.D. Cal.\\n\\nNov. 25, 2009) (\\\"[I]f a pled claim is internally inconsistent with\\n\\nitself, the inconsistencies may cancel each other out and render\\n\\nthe claim subject to dismissal for failure to state a claim.\\\");\\n\\nSteiner v. Twentieth Century–Fox Film Corp., 140 F. Supp. 906, 908\\n\\n(S.D. Cal. 1953) (\\\"[N]o authority is known . . . which permits\\n\\nblowing hot and cold in the same cause of action.\\\"). Yet the\\n\\nappellants' logic would require us to do just that.8\\n\\n It may be that the appellants also separately mean to\\n\\nargue that the 2012 subpoenas cannot be said to be part of any\\n\\n\\\"Claim\\\" that was \\\"first made\\\" when the 2011 Order was issued,\\n\\nbecause those subpoenas do not contain any \\\"Wrongful Acts.\\\" The\\n\\nappellants are right that, insofar as the subpoenas do not contain\\n\\nany \\\"Wrongful Acts\\\" they cannot be treated as part and parcel of\\n\\na \\\"Claim\\\" that was first made when the 2011 Order was issued on\\n\\nthe basis of the Interrelated Wrongful Acts Provision. But, a\\n\\nnecessary premise of this contention is that each subpoena is a\\n\\n\\\"Claim\\\" in its own right. As we explained earlier, see supra\\n\\n\\n 8 To avoid this inconsistency, the appellants in their reply\\nbrief argue for the first time that they are entitled to coverage\\nfor the 2012 subpoenas because the Policy is ambiguous as to how\\nit treats a \\\"Claim\\\" that does not contain any \\\"Wrongful Acts\\\" and\\nthat ambiguity should inure to the benefit of the insured party.\\nBut in addition to the fact that new arguments in reply briefs are\\nwaived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\\n1998), the plain terms of the Policy preclude this contention.\\n\\n\\n - 24 -\\n\\fSection III, however, the plain terms of the definition of a \\\"D&O\\n\\nClaim\\\" compel the conclusion that the 2012 subpoenas are -- by\\n\\nvirtue of the second component of that definition -- merely\\n\\ncomponents of the \\\"Claim\\\" constituted by the\\n\\n\\\"civil . . . administrative or regulatory proceeding against\\\"\\n\\nBioChemics and Masiz.9\\n\\n And, in any event, the appellants cannot rightly contend\\n\\nthat the 2012 subpoenas, which they concede contain no references\\n\\nto misconduct, nonetheless somehow allege \\\"Wrongful Acts\\\" for\\n\\npurposes of triggering the duty to defend, while simultaneously\\n\\ncontending that the 2011 Order, which indisputably does contain\\n\\nreferences to misconduct, does not allege \\\"Wrongful Acts.\\\" But,\\n\\nfor reasons we have explained, the plain language of the Policy\\n\\nrequires the appellants to make such an internally inconsistent\\n\\nargument if they are to explain how the subpoenas could trigger a\\n\\n\\n 9 We suppose it is not entirely clear whether the \\\"Claim\\\" of\\nwhich the 2012 subpoenas are best understood to be a part was the\\n\\\"Claim\\\" that was \\\"commenced by\\\" the \\\"investigative order\\\" that the\\nSEC issued on May 5, 2011 or the \\\"Claim\\\" that was \\\"commenced\\\" by\\nthe filings of the first of the subpoenas. But, that ambiguity is\\nof no significance here. Insofar as the subpoenas are part of the\\n\\\"Claim\\\" commenced by the issuance of the 2011 Order, they are\\nplainly part of a \\\"Claim\\\" that was \\\"first made\\\" prior to the policy\\nperiod. And, insofar as the subpoenas are part of a \\\"Claim\\\" that\\ncommenced upon the first of those subpoenas having been issued and\\nthat then culminated in the 2012 Action, that \\\"Claim\\\" -- at least\\ngiven the arguments presented here -- would still have been \\\"first\\nmade\\\" prior to the start of the policy period, if the \\\"Wrongful\\nActs\\\" contained in the 2012 Action share a \\\"common nexus\\\" with the\\n\\\"Wrongful Acts\\\" that the 2011 Order may fairly be construed to\\nhave contained.\\n\\n - 25 -\\n\\fduty to defend, given that such a duty is only triggered by a\\n\\n\\\"Claim\\\" \\\"alleging a Wrongful Act.\\\"\\n\\n 2.\\n\\n We turn, then, to the appellants' next contention. Here,\\n\\nthe appellants challenge the way in which the District Court\\n\\napplied the Interrelated Wrongful Acts Provision in deeming the\\n\\n\\\"Claim\\\" that encompassed the 2012 Action and the \\\"Claim\\\" that\\n\\nencompassed the 2011 Order to be \\\"one Claim.\\\" The appellants press\\n\\nthis point by arguing that, even if the 2012 Action contained\\n\\n\\\"Wrongful Acts,\\\" the 2011 Order described the misconduct that it\\n\\nmay be said to have \\\"alleged\\\" in too diffuse a manner to permit\\n\\nthe conclusion, pursuant to the Interrelated Wrongful Acts\\n\\nProvision, that it contained \\\"Wrongful Acts\\\" that share \\\"a common\\n\\nnexus\\\" with those contained in the 2012 Action.10 Thus, the\\n\\nappellants contend, the Interrelated Wrongful Acts Provision\\n\\naffords no basis for deeming these two otherwise distinct\\n\\n\\\"Claim[s]\\\" to be \\\"one Claim.\\\"\\n\\n The appellants fail to identify any authority, however,\\n\\nto support the proposition that the Interrelated Wrongful Acts\\n\\nProvision implicitly establishes some threshold of specificity\\n\\nthat was not met here but that must be met before a \\\"Wrongful Act\\\"\\n\\n\\n 10The appellants do not separately contend that we should\\ngrant them relief for the 2012 Action -- which clearly contains\\n\\\"Wrongful Acts\\\" -- even if we find that they are not entitled to\\nrelief for the 2012 subpoenas.\\n\\n\\n - 26 -\\n\\fcontained in one \\\"Claim\\\" may be said to \\\"share a common nexus\\\"\\n\\nwith a \\\"Wrongful Act\\\" contained in another. Instead, the\\n\\nappellants rely for the assertion that such an implicit threshold\\n\\nof specificity exists -- and that it has not been met here -- only\\n\\non cases that require courts to perform a \\\"detailed comparison of\\n\\nthe facts underlying pre and post Policy claims.\\\" See, e.g.,\\n\\nAllmerica Fin. Corp. v. Certain Underwriters at Lloyd's, London,\\n\\n871 N.E.2d 418, 430 (Mass. 2007); Mass. Insurers Insolvency Fund\\n\\nv. Redland Ins. Co., 891 N.E.2d 718 (Mass. App. Ct. 2008) (table).\\n\\nBut, those cases just show that a detailed comparison of \\\"Wrongful\\n\\nActs\\\" in distinct \\\"Claims\\\" is required before a determination that\\n\\nthey are \\\"interrelated\\\" can be made. They do not purport to\\n\\nestablish a threshold of specificity that must be met before that\\n\\ninquiry even can be undertaken, let alone one that was not met\\n\\nhere.\\n\\n We proceed, then, to consider a related contention that\\n\\nthe appellants make. Here, the appellants argue that a detailed\\n\\ncomparison of the \\\"Wrongful Acts\\\" contained in the 2011\\n\\nOrder -- insofar as there are any -- with the \\\"Wrongful Acts\\\" that\\n\\nare contained in the 2012 Action reveals that they do not share a\\n\\n\\\"common nexus [in] fact, circumstance, situation, event, [or]\\n\\ntransaction\\\" and thus are not \\\"Interrelated Wrongful Acts.\\\"\\n\\n The appellants stake this contention on the fact that\\n\\nthe 2012 Action includes a reference to at least one \\\"Wrongful\\n\\n\\n - 27 -\\n\\fAct\\\" that occurred after the 2011 Order and the 2011 subpoenas\\n\\nwere issued. Specifically, the 2012 Action \\\"allege[s]\\\" that\\n\\nBioChemics misled investors regarding the results of a clinical\\n\\ntrial on the effectiveness of a new ibuprofen cream.\\n\\n The appellants note that the preliminary results of that\\n\\ntrial were not available until five months after the SEC issued\\n\\nits 2011 Order and two months after it issued the last of its 2011\\n\\nsubpoenas. On that basis, the appellants contend that this\\n\\n\\\"Wrongful Act\\\" could not have been contemplated as part of the\\n\\nSEC's initial investigation and thus that the 2012\\n\\nAction -- insofar as it is a \\\"Claim\\\" (or, we may posit, part of a\\n\\n\\\"Claim\\\") -- does not contain \\\"Wrongful Acts\\\" that share a \\\"common\\n\\nnexus [in] fact, circumstance, situation, event, transaction, [or]\\n\\ncause\\\" with those referenced in the 2011 Order.\\n\\n In pressing this point, the appellants appear to accept\\n\\nthat the \\\"substantial overlap\\\" test from Federal Ins. Co. v.\\n\\nRaytheon Co., 426 F.3d 491 (1st Cir. 2005), is also the test that\\n\\nwe should use to determine whether the Policy's requirement that\\n\\n\\\"Interrelated Wrongful Acts\\\" share a \\\"common nexus\\\" has been met.11\\n\\nThe appellants thus appear to argue only that, even if we assume\\n\\n\\n\\n 11 The appellants appear to do so, we note, even though\\nRaytheon was interpreting a different type of exclusionary\\nprovision. See id. at 495 (noting that parties in Raytheon were\\ncontesting the applicability of the policy's \\\"prior and pending\\nlitigation clause\\\").\\n\\n\\n - 28 -\\n\\fthat the 2012 Action contains many \\\"Wrongful Acts,\\\" there is\\n\\none -- misrepresentation concerning the ibuprofen trial -- that\\n\\ndoes not \\\"overlap\\\" with any of the \\\"Wrongful Acts\\\" that are\\n\\nreferenced in the 2011 Order and that, for this reason alone, the\\n\\n\\\"substantial overlap\\\" of the \\\"Wrongful Acts\\\" alleged that would\\n\\notherwise require the aggregation of the \\\"Claim[s]\\\" under Raytheon\\n\\nfails to exist.\\n\\n But, Raytheon forecloses the conclusion that, under the\\n\\n\\\"substantial overlap\\\" test, the existence of a single\\n\\nnon-overlapping \\\"Wrongful Act\\\" can suffice to preclude the\\n\\naggregation of distinct \\\"Claim[s]\\\" that the Policy's Interrelated\\n\\nWrongful Acts Provision would otherwise require. In Raytheon, we\\n\\ncompared a 2002 ERISA complaint with an earlier securities fraud\\n\\ncomplaint to determine if the two were \\\"substantially similar\\\" for\\n\\nthe purposes of a policy exclusion. Id. at 500. We recognized\\n\\nthat the ERISA complaint contained several allegations that\\n\\noccurred after the fraud case's completion. See id. We\\n\\nnevertheless held that \\\"substantial [factual] overlap\\\" existed\\n\\nbetween the two matters, because many of the factual allegations\\n\\nin the ERISA action were identical to those in the earlier fraud\\n\\nsuit. Id. Accordingly, we fail to see how the reference to the\\n\\nibuprofen trial misrepresentation in the 2012 Action in and of\\n\\nitself suffices to show that there is no \\\"substantial overlap\\\"\\n\\n\\n\\n\\n - 29 -\\n\\fbetween the \\\"Wrongful Acts\\\" referenced in 2011 Order and those\\n\\nreferenced in the \\\"Claim\\\" encompassing the 2012 Action.\\n\\n The appellants do cite to multiple cases that, they\\n\\ncontend, stand for the proposition -- seemingly in contravention\\n\\nof Raytheon -- that where a single allegation in a recent \\\"Claim\\\"\\n\\ndiffers from the \\\"Wrongful Acts\\\" contained in a pre-policy \\\"Claim,\\\"\\n\\nthe insured is entitled to coverage for the entire recent \\\"Claim,\\\"\\n\\nnotwithstanding a prior acts exclusion. But, even if we were to\\n\\ntreat the appellants' reliance on these cases as an implicit\\n\\nargument that some test other than the one set forth in Raytheon\\n\\ngoverns whether the relevant set of \\\"Wrongful Acts\\\" are\\n\\ninterrelated for purposes of this Policy's \\\"Interrelated Wrongful\\n\\nActs Provision,\\\" each of these cases is readily distinguishable\\n\\nfrom this one.\\n\\n Brown v. American Int'l Grp., Inc., 339 F. Supp. 2d 336\\n\\n(D. Mass. 2004), for example, appears to be interpreting Kentucky\\n\\nlaw and therefore hardly sheds light on how we should treat the\\n\\ndescribed scenario under Massachusetts law. See id. at 345 n.5.\\n\\nAllmerica, moreover, compared a pre-policy \\\"Claim\\\" containing a\\n\\nsingle allegation of wrongdoing with a \\\"Claim\\\" made during the\\n\\npolicy period that contained multiple allegations and determined\\n\\nthat, based on the record, the court could not conclude that any\\n\\noverlap existed between the two cases. See Allmerica, 871 N.E.2d\\n\\nat 430. Thus, Allmerica does not even appear to address the\\n\\n\\n - 30 -\\n\\fsituation where it is uncontested that some \\\"overlap\\\" in factual\\n\\nallegations does exist, notwithstanding some non-overlapping\\n\\nallegations.\\n\\n The appellants do also rely on Redland, which is a\\n\\nMassachusetts case applying Massachusetts law. There, the court\\n\\ncompared two pre-policy \\\"Claims\\\" with a \\\"Claim\\\" issued during the\\n\\npolicy period. The court determined that, despite the existence\\n\\nof some overlapping allegations, the \\\"bulk\\\" or \\\"heart\\\" of the more\\n\\nrecent allegations occurred well after the pre-policy \\\"Claims\\\"\\n\\nwere issued. 2008 WL 3342991 at *2. The court therefore\\n\\ndetermined that there was not enough overlap to trigger the\\n\\nexclusion. Id. But, the appellants do not explain why the one\\n\\npoint of non-overlap that they identify -- the ibuprofen\\n\\ntrial -- suffices to show that the \\\"bulk\\\" or \\\"heart\\\" of the\\n\\n\\\"Wrongful Acts\\\" contained in the 2012 Action do not \\\"substantially\\n\\noverlap\\\" with those contained in the 2011 Order. Indeed, it\\n\\nappears that the court in Redland is tacitly endorsing the\\n\\n\\\"substantial overlap\\\" test from Raytheon.\\n\\n Thus, at least given the arguments advanced to us on\\n\\nappeal, the appellants' argument that the \\\"Wrongful Acts\\\" listed\\n\\nin the 2012 Action are not \\\"interrelated\\\" with those contained in\\n\\nthe 2011 Order due to the diffuse nature of the allegations those\\n\\nfilings contain is not persuasive. Accordingly, we reject the\\n\\nappellants' contention that, due to the diffuse nature of the\\n\\n\\n - 31 -\\n\\fdescription of the acts in the SEC filings, the District Court\\n\\nerred in relying as it did on the Interrelated Wrongful Acts\\n\\nProvision in granting summary judgment to AXIS.\\n\\n V.\\n\\n We must consider one last argument, which concerns only\\n\\na portion of the District Court's grant of summary judgment to\\n\\nAXIS. The appellants contend that, even if we disagree with the\\n\\nappellants' arguments regarding AXIS's duty to defend the\\n\\n\\\"Claim[s]\\\" encompassing the 2012 subpoenas and 2012 Action\\n\\ngenerally, we must still hold that AXIS has a duty to defend the\\n\\n\\\"Claims\\\" against Masiz individually.\\n\\n The contention relies on language in the Policy covering\\n\\n\\\"Claims\\\" \\\"first made against such Insured . . . during the Policy\\n\\nPeriod.\\\" The argument is that this language indicates that the\\n\\nduty to defend is only triggered when a \\\"Claim\\\" \\\"is first made\\n\\nagainst [a] particular insured.\\\" The argument then proceeds that\\n\\neven though a \\\"Claim\\\" had been made against BioChemics at the time\\n\\nthe 2011 Order was issued, no \\\"Claim\\\" had been made against Masiz\\n\\nas of that time. The contention is that the earliest point in\\n\\nwhich a \\\"Claim\\\" had been made against Masiz was the moment that he\\n\\nwas served by the SEC with one of the 2012 subpoenas, which is an\\n\\nevent that occurred during the policy period.\\n\\n In so arguing, the appellants rely on the analysis in\\n\\nTranSched Sys. Ltd. v. Fed. Ins. Co., 958 F. Supp. 2d 331 (D.R.I.\\n\\n\\n - 32 -\\n\\f2013). But, the dispute there centered on whether the phrase \\\"such\\n\\nInsured\\\" applied to a party who was neither an \\\"insured\\\" nor\\n\\nseeking coverage. Id. at 336-37. Here, by contrast, the dispute\\n\\nconcerns whether the 2011 Order and pre-Policy subpoenas were clear\\n\\nenough to inform Masiz, who is an insured seeking coverage, that\\n\\nhe was a target of the SEC's investigation commenced by the 2011\\n\\nOrder. Given that the Court's analysis in TranSched does not speak\\n\\nat all to that type of question, we fail to see how that case is\\n\\ninstructive here.\\n\\n To the extent that this argument rests on the fact that\\n\\nthe 2011 Order did not \\\"allege[]\\\" \\\"Wrongful Acts\\\" performed by\\n\\nMasiz due to the qualified nature of the only misconduct therein\\n\\ndescribed, we have already explained why that contention is\\n\\nuntenable here. Qualified though these references to misconduct\\n\\nwere, they did suffice to \\\"allege[]\\\" \\\"Wrongful Acts.\\\"\\n\\n It is possible that the appellants mean to argue that\\n\\nthe 2011 Order does not constitute a \\\"Claim\\\" made against Masiz\\n\\nbecause, although he was served with certain of the 2012 subpoenas\\n\\nand named as co-defendant in the 2012 Action, he was not similarly\\n\\nserved with or named in the 2011 Order. But, here too, we are\\n\\nunpersuaded.\\n\\n The appellants do invoke, seemingly in support of this\\n\\ncontention, a number of precedents that concern private suits in\\n\\nwhich the complaints named particular defendants, the most\\n\\n\\n - 33 -\\n\\fdirectly analogous of which is Medical Mut. Ins. Co. of Maine v.\\n\\nIndian Harbor Ins. Co., 583 F.3d 57 (1st Cir. 2009). There, we\\n\\nheld that a suit against an insured company that alleged wrongdoing\\n\\nby some of its officers did not constitute a claim against those\\n\\nofficers. Id. at 63. But, the relevant document here is not a\\n\\ncomplaint in a private suit naming a particular defendant. It is\\n\\nan SEC Order authorizing a private investigation by that agency\\n\\ninto alleged wrongdoing by a company and persons associated with\\n\\nit. The appellants identify no precedent that supports the\\n\\nproposition that a filing of that type must be formally\\n\\nserved -- as a suit or subpoena must be -- on the insured for it\\n\\nto constitute a \\\"Claim\\\" against him.\\n\\n Moreover, the Policy expressly identifies an\\n\\n\\\"investigative order\\\" as a component of a \\\"D&O Claim.\\\" The 2011\\n\\nOrder opens with a full paragraph that, in the course of describing\\n\\nMasiz's past securities violations and the terms of his probation,\\n\\nidentifies him to be the \\\"sole officer and director of BioChemics.\\\"\\n\\nThe document then proceeds to describe misconduct that, for the\\n\\nreasons that we have already given, see supra Section IV.B.1,\\n\\nsuffices to \\\"allege[]\\\" \\\"Wrongful Acts\\\" within the meaning of the\\n\\nPolicy and that attribute that possible misconduct to a range of\\n\\npersons that include not only the company itself but its\\n\\n\\\"officers.\\\" Finally, the Order goes on to state that the SEC\\n\\n\\\"ORDERS . . . that a private investigation be made to determine\\n\\n\\n - 34 -\\n\\fwhether any persons or entities have engaged in, or are about to\\n\\nengage in, any of the reported acts or practices or any acts or\\n\\npractices of similar purport or object.\\\" Accordingly, the \\\"plain\\n\\nlanguage\\\" of Masiz's Policy shows that the 2011 Order -- in\\n\\nannouncing an investigation of BioChemics's officers and expressly\\n\\nnaming Masiz as the only one -- is properly deemed a \\\"Claim\\\"\\n\\nagainst not only BioChemics but also Masiz himself. See Nat. Stock\\n\\nExch., 2007 WL 1030293, at *4-5 (emphasis added).\\n\\n VI.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\ndecisions granting summary judgment in favor of AXIS and denying\\n\\nthe appellants' Motion for Partial Summary Judgment. The parties\\n\\nshall bear their own costs.\\n\\n\\n\\n\\n - 35 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399975/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"THOMPSON"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622722/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: BIOCHEMICS, INC.; John Masiz, Plaintiffs, Appellants, v. AXIS REINSURANCE COMPANY, Defendant, Appellee. John P. Raucci; Brown & Brown of New York, Inc., Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 17-2059\n\n BIOCHEMICS, INC.; JOHN MASIZ,\n\n Plaintiffs, Appellants,\n\n v.\n\n AXIS REINSURANCE COMPANY,\n\n Defendant, Appellee.\n\n JOHN P. RAUCCI; BROWN & BROWN OF NEW YORK, INC.,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Rya W. Zobel, U.S. District Judge]\n\n\n Before\n\n Thompson, Kayatta, and Barron,\n Circuit Judges.\n\n\n Steven L. Schreckinger, with whom Anderson & Kreiger LLP were\non brief, for appellants.\n Melinda B. Margolies, with whom Kaufman Borgeest & Ryan LLP,\nWilliam A. Schneider, and Morrison Mahoney LLP were on brief, for\nappellee.\n\n\n May 23, 2019\n\f BARRON, Circuit Judge. This appeal concerns a 2013 suit\n\nthat BioChemics, Inc. (\"BioChemics\"), a pharmaceutical company\n\nbased in Massachusetts, and John Masiz (\"Masiz\"), its president\n\nand chief executive officer, brought in the District of\n\nMassachusetts to enforce a directors and officers (\"D&O\")\n\ninsurance policy (the \"Policy\") with AXIS Reinsurance Company\n\n(\"AXIS\"). BioChemics and Masiz seek damages for what they contend\n\nis AXIS's breach, under the Policy, of its \"duty to defend\" them\n\nin connection with a Securities and Exchange Commission (\"SEC\")\n\ninvestigation against the company and its officers.\n\n BioChemics and Masiz moved for partial summary judgment\n\nin 2013, and the District Court denied the motion. BioChemics,\n\nInc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64, 70-71 (D. Mass.\n\n2013). They filed a renewed motion for partial summary judgment\n\nin 2015, and AXIS cross-moved for summary judgment. AXIS contended\n\nin that motion that it did not breach its duty to defend under the\n\nPolicy because, among other things, BioChemics and Masiz were\n\nseeking to enforce that duty in relation to a \"Claim\" that -- given\n\nwhen the SEC investigation commenced -- was \"first made\" before\n\nthe Policy took effect and thus was not \"covered\" by the Policy.\n\nThe District Court granted AXIS's motion. BioChemics and Masiz\n\nnow appeal from the grant of summary judgment to AXIS. We affirm.\n\n\n\n\n - 2 -\n\f I.\n\n The undisputed facts are the following. On May 5, 2011,\n\nthe SEC began a \"Non-Public Formal Investigation\" by issuing a\n\nFormal Order captioned \"In the Matter of BioChemics, Inc., B-02641\"\n\n(the \"2011 Order\"). The 2011 Order mentioned Masiz by name,\n\ndescribed him as the sole officer of the company, and identified\n\nseveral \"possible\" securities violations. These \"possible\"\n\nviolations included instances of fraud and misrepresentation,\n\nbeginning as early as 2009, that were aimed at distorting the value\n\nof BioChemics securities. The 2011 Order also noted that Masiz\n\nhad been sanctioned for securities violations in the past and that,\n\ndue to those sanctions, he had been barred from serving as an\n\nofficer or director of any publicly traded company until 2009.\n\n On May 9, 2011, and then again on September 12, 2011,\n\nthe SEC served subpoenas on BioChemics. The 2011 subpoenas\n\nrequested documents pertaining to, among other things, the\n\ncompany's finances, operations, drugs under development,\n\ninteractions with pharmaceutical companies, and payments to Masiz.\n\nThese subpoenas bore the same caption as the 2011 Order and\n\nexpressly referenced the 2011 Order as authorizing their issuance.\n\nIn a cover letter that accompanied the September 2011 subpoena,\n\nthe SEC stated that the \"investigation . . . should not be\n\nconstrued as an indication by the [SEC] that any violation of law\n\nhas occurred.\"\n\n\n - 3 -\n\f After receiving the May 2011 subpoena, BioChemics\n\nretained legal counsel and a consulting firm to assist with its\n\nresponse. At that time, BioChemics had a D&O insurance policy\n\nwith Greenwich Insurance Company. BioChemics did not, at any\n\npoint, notify that insurer about the ongoing SEC investigation.\n\n In October of 2011, BioChemics and Masiz, in his\n\nindividual capacity, applied to have AXIS take over as the D&O\n\ninsurer for the policy period that ran from November 2011 to\n\nNovember 2012. In that application, BioChemics and Masiz\n\nrepresented that there were no legal claims pending against them.\n\nAXIS agreed to provide the D&O insurance for the requested policy\n\nperiod.\n\n In January of 2012, the SEC served deposition subpoenas\n\non Masiz and other individuals. In March of that same year, the\n\nSEC followed up by serving documents subpoenas on BioChemics and\n\nMasiz. Each of these 2012 subpoenas -- eight in total -- bore the\n\nsame caption as the 2011 Order and the 2011 subpoenas. One of\n\nthese subpoenas was served on Masiz in his individual capacity for\n\ndeposition testimony and one was served on him in his individual\n\ncapacity for document production.\n\n Finally, in December of 2012, the SEC commenced an\n\nEnforcement Action (\"2012 Action\") against BioChemics, Masiz, and\n\ntwo other individuals. The 2012 Action \"allege[d]\" that, beginning\n\nas early as 2009, Biochemics and Masiz had \"engaged in a fraudulent\n\n\n - 4 -\n\fscheme\" to mislead investors about the company's value. At least\n\none of the \"allege[d]\" misrepresentations, concerning a topical\n\nibuprofen product, took place after the 2011 Order and the 2011\n\nsubpoenas were issued.\n\n After receiving the March 2012 documents subpoenas,\n\nBioChemics and Masiz notified AXIS of them, as well as of the\n\nsubpoenas that the SEC had issued in January of 2012. AXIS\n\n\"agree[d] that the SEC Investigation . . . constitute[d] a D&O\n\nClaim\" under the Policy. AXIS asserted, however, that BioChemics\n\nand Masiz were necessarily seeking -- given the terms of the\n\nPolicy -- \"coverage\" for a single \"Claim\" that encompassed the SEC\n\ninvestigation as a whole and that this \"Claim\" was \"first made\" in\n\nMay of 2011 when the SEC issued the documents subpoena to\n\nBioChemics and thus that this \"Claim\" was \"first made\" \"prior to\n\nthe inception of the Policy Period.\"1 On the basis of that\n\nassertion, AXIS stated that \"because the Claim was not made during\n\nthe Policy Period, coverage is not available for the SEC\n\nInvestigation.\"\n\n AXIS later took the same position with respect to the\n\n2012 Action. It concluded that the 2012 Action was also part of\n\nthe same single \"Claim\" that was \"first made\" when the SEC issued\n\n\n\n\n 1BioChemics and Masiz had not informed the insurer about the\n2011 Order at the time that AXIS denied coverage.\n\n\n - 5 -\n\fthe May 2011 documents subpoena, which was prior to the start of\n\nthe policy period.\n\n In response, on February 27, 2013, BioChemics and Masiz\n\nsued AXIS in Massachusetts Superior Court. BioChemics and Masiz\n\nalleged breach of contract and breach of fiduciary duty, under\n\nMassachusetts law, based on the contention that AXIS had breached\n\nits duty to defend under the Policy. The case was subsequently\n\nremoved to the United States District Court for the District of\n\nMassachusetts based on diversity jurisdiction. 28 U.S.C. § 1332.\n\nBioChemics and Masiz filed a Motion for Partial Summary Judgment\n\nin the District Court on June 5, 2013. They argued that each of\n\nwhat they contended were the \"Claim[s]\" that triggered AXIS's duty\n\nto defend under the Policy -- respectively, each of the 2012\n\nsubpoenas and the 2012 Action -- had been brought by the SEC after\n\nthe policy period began to run and thus was \"first made\" within\n\nthe policy period.\n\n The District Court denied that motion in August of 2013.\n\nBioChemics, Inc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64 (D.\n\nMass. 2013). In reaching this decision, the District Court did\n\nnot address the relevance of the 2011 Order, as BioChemics and\n\nMasiz had not yet disclosed the 2011 Order to AXIS or the District\n\nCourt.\n\n On February 14, 2014, BioChemics and Masiz filed a\n\nrenewed Motion for Partial Summary Judgment. They again argued\n\n\n - 6 -\n\fthat, under the Policy, AXIS had a duty to defend that was\n\ntriggered by \"Claim[s]\" -- each of the 2012 subpoenas and the 2012\n\nAction -- that had been \"first made\" during the policy period.\n\nAXIS cross-filed a Motion for Summary Judgment. AXIS argued that\n\nit had no such duty because, among other things, the SEC filings\n\nwere properly treated as a single \"Claim\" that had been \"first\n\nmade\" when the SEC issued the May 2011 documents subpoena and thus\n\nthat was \"first made\" prior to the policy period.\n\n On January 6, 2015, the District Court entered an order\n\ngranting AXIS's Motion for Summary Judgment and denying BioChemics\n\nand Masiz's Motion for Partial Summary Judgment. BioChemics, Inc.\n\nv. Axis Reinsurance Co., 83 F. Supp. 3d 405 (D. Mass. 2015)\n\n[hereinafter BioChemics II]. By that time, the District Court had\n\nbeen made aware of the 2011 Order. Equipped with that knowledge,\n\nthe District Court held that the 2012 Action, and the multiple\n\n2012 subpoenas, were all part of a \"Claim\" that had been \"first\n\nmade\" when the 2011 Order issued (May 5, 2011). Id. at 408.\n\nBioChemics and Masiz then appealed the District Court's order.2\n\n\n\n\n 2 The Policy sets forth AXIS's \"duty to defend\" and its duty\nto cover \"defense costs\" under separate provisions. BioChemics\nand Masiz's complaint requested the recovery only of \"damages\ncaused by [AXIS's] breach of . . . its duty to defend.\" We proceed\non the understanding that the parties, in referring to \"coverage\"\nunder the Policy, are referring to AXIS's duty to defend.\n\n\n - 7 -\n\f II.\n\n The Policy incorporates four separate Insuring\n\nAgreements: the D&O Corporate Liability Agreement, the Employment\n\nPractices Liability Agreement, the Fiduciary Liability Agreement,\n\nand the Outside Executive Liability Agreement. The only agreement\n\nthat is at issue in this appeal is the D&O Corporate Liability\n\nAgreement.\n\n That agreement obligates AXIS to cover \"all Loss on\n\nbehalf of any Insured arising from any D&O Claim for a Wrongful\n\nAct . . . first made against such Insured . . . during the Policy\n\nPeriod .\"3 The Policy defines \"Loss\" as \"the amount(s) which the\n\nInsureds become legally obligated to pay on account of a Claim,\n\nincluding damages, judgments, any award of pre-judgment and post-\n\njudgment interest, settlement amounts, costs and fees awarded\n\npursuant to judgments, and Defense Costs.\" (Emphasis added). The\n\nPolicy separately provides that AXIS has \"both the right and duty\n\nto defend and appoint counsel with respect to any Claim made\n\nagainst the Insureds alleging a Wrongful Act, even if such a Claim\n\nis groundless, false or fraudulent.\"\n\n The Policy defines a \"D&O Claim\" as:\n\n a. a written demand against an Insured for\n monetary or nonmonetary relief;\n\n\n\n 3 The policy period ran from November 13, 2011 to November\n13, 2013.\n\n\n - 8 -\n\f b. a civil, arbitration, administrative or\n regulatory proceeding against any Insured\n commenced by:\n (i) the service of a complaint or similar\n pleading;\n (ii) the filing of a notice of charge,\n investigative order or like document; or\n (iii) written notice or subpoena from an\n authority identifying such Insured as an\n entity or person against whom a formal\n proceeding may be commenced; or\n c. a criminal investigation or proceeding\n against any Insured Individual commenced by:\n (i) the return of an indictment, information,\n or similar pleading; or\n (ii) written notice or subpoena from an\n authority identifying such Insured Individual\n as an individual against whom a formal\n proceeding may be commenced.\n\n A \"Wrongful Act,\" in turn, is defined as \"any actual or\n\nalleged error, misstatement, misleading statement, act, omission,\n\nneglect, or breach of duty.\"\n\n There is one more provision that is important for present\n\npurposes. Under the Policy's \"Limits of Liability\" heading, there\n\nis a provision [hereinafter \"Interrelated Wrongful Acts\n\nProvision\"] that states:\n\n All Claims, including all D&O Claims . . .\n arising from the same Wrongful Act, Wrongful\n Third Party Act, and all Interrelated Wrongful\n Acts shall be deemed one Claim and such Claim\n shall be deemed to be first made on the earlier\n date that: (1) any of the Claims is first made\n against an Insured under this Policy or any\n prior policy, or (2) valid notice was given by\n the Insureds under this Policy or any prior\n policy of any Wrongful Act, Wrongful Third\n Party Act, or any fact, circumstance,\n situation, transaction or cause which\n underlies such Claim. Coverage under this\n\n\n - 9 -\n\f Policy shall apply only with respect to Claims\n deemed to have been first made during the\n Policy Period and reported in writing to the\n Insurer in accordance with the terms herein.\n\nThe Policy earlier separately defines \"Interrelated Wrongful Acts\"\n\nas \"any and all Wrongful Acts that have as a common nexus any fact,\n\ncircumstance, situation, event, transaction, cause or series of\n\ncausally or logically connected facts, circumstances, situations,\n\nevents, transactions or causes.\"4\n\n With that background in place, we now turn to the merits\n\nof the parties' contentions. Because we are reviewing a grant of\n\nsummary judgment to AXIS, we must affirm the order below if there\n\nis no genuine issue of material fact and AXIS is entitled to\n\njudgment as a matter of law. See Utica Mut. Ins. Co. v. Herbert\n\nH. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir. 2016). Our\n\nreview is de novo. See id. Moreover, in this case, only \"the\n\ninterpretation and application of the [insurance] policy language\"\n\nare in dispute. Massamont Ins. Agency, Inc. v. Utica Mut. Ins.\n\nCo., 489 F.3d 71, 72 (1st Cir. 2007) (citation omitted). We review\n\nthose issues of interpretation and application de novo as well.\n\nId.\n\n\n\n\n 4\n The Policy also includes a section on \"Exclusions\" outlining\nseveral circumstances under which AXIS will not bear liability for\n\"Claims\" against the insured parties. However, it appears that\nneither party argues that any of these \"Exclusions\" apply to the\ninstant matter.\n\n\n - 10 -\n\f III.\n\n BioChemics and Masiz, the appellants, begin by\n\ncontending that the District Court erred in ruling that the \"Claim\"\n\nthat triggered AXIS's duty to defend had been \"first made\" when\n\nthe SEC issued the 2011 Order in May of that year -- and thus prior\n\nto the start of the policy period, which began in November of 2011.\n\nThe appellants contend that the District Court based that ruling\n\nsolely on a construction of the definition of \"D&O Claim\" in the\n\nPolicy and thus without reference to the Interrelated Wrongful\n\nActs Provision. The appellants then go on to contend that this\n\nconstruction of the definition of \"D&O Claim\" was mistaken.\n\n To make that case, the appellants assert that the Policy\n\ndefines a \"D&O Claim\" in a way that makes the 2011 Order, each of\n\nthe various subpoenas issued in its wake, and the 2012 Action a\n\n\"Claim\" in its own right, rather than merely components of a\n\n\"Claim\" that encompasses the SEC investigation as a whole. Thus,\n\nthe appellants contend, the District Court's sole reason for\n\ntreating the 2012 subpoenas and the 2012 Action as part of a\n\n\"Claim\" that was \"first made\" when the SEC issued the 2011 Order\n\nand thus before the policy period began rests on a mistaken\n\nconstruction of the Policy's definition of a \"D&O Claim.\"\n\n The appellants appear to rely for their argument about\n\nthe nature of the District Court's reasoning on the following\n\nportions of the District Court's ruling:\n\n\n - 11 -\n\f The policy here defines a \"Claim\" broadly to\n include, inter alia, any \"civil, arbitration,\n administrative or regulatory proceeding\n against any Insured commenced by . . . the\n filing of a notice of charge, investigative\n order, or like document.\" The triggering\n events are all part of a single SEC\n Investigation under the Formal Order. Each\n subpoena was issued under, and referred to,\n the original Formal Order, and investigated\n the same officers and company for the same\n pattern of security violations through public\n material misstatements. Under the clear\n language of the Policy, and on the record\n before the [C]ourt, the subpoenas all\n constituted a single \"Claim\" under the policy.\n\n The only remaining question is whether the\n Claim at issue is covered under the AXIS\n policy. A Claim is only covered under the\n policy if \"deemed to have been first made\n during the Policy Period.\" A claim \"shall be\n deemed to be first made on the earlier date\n that: (1) any of the Claims is first made\n against an Insured under this Policy or any\n prior policy . . . .\" Docket # 30, Ex. A\n (Policy) § V.A. The Formal Order issued on\n May 5, 2011. The policy went into effect on\n November 13, 2011. The investigation and\n enforcement action, the Claim at issue, was\n thus \"first made\" before the policy period and\n is, therefore, not covered under the policy.\n\nBioChemics II, 83 F. Supp. 3d at 407-08 (internal citations\n\nomitted) (alterations in original).\n\n The problem with the appellants' argument is that the\n\nDistrict Court does not purport in these passages to rely solely\n\non the Policy's definition of a \"D&O Claim\" to reach the conclusion\n\nthat the 2011 Order, the subpoenas, and the 2012 Action are part\n\nand parcel of one \"Claim.\" Rather, the District Court explains in\n\n\n\n - 12 -\n\fthis passage that the 2012 Action may be deemed to be part of one\n\n\"Claim\" that was \"first made\" prior to the start of the policy\n\nperiod by citing to the portion of the Interrelated Wrongful Acts\n\nProvision that states that \"[a] Claim 'shall be deemed to be first\n\nmade on the earlier date that: (1) any of the Claims is first made\n\nagainst an Insured under this Policy or any prior policy.'\" Id.\n\nat 408 (citing \"§ V.A\" of the Policy -- the Interrelated Wrongful\n\nActs Provision) (alteration in original).\n\n In other words, the District Court appears to have\n\nconcluded that, pursuant to the Policy's definition of a \"D&O\n\nClaim,\" the 2012 Action constitutes a \"Claim\" that was distinct\n\nfrom the \"Claim\" of which the 2011 Order was a part. But, the\n\nDistrict Court then went on to conclude, those two otherwise\n\ndistinct \"Claim[s]\" must be deemed to be \"one Claim\" pursuant to\n\nthe Interrelated Wrongful Acts Provision.\n\n Thus, the appellants' contention that the District Court\n\nerred in treating the 2012 Action as part of a \"Claim\" that was\n\n\"first made\" before the start of the policy period because the\n\nDistrict Court relied on a mistaken construction of the Policy's\n\ndefinition of a \"D&O Claim\" fails for a simple reason. The\n\nDistrict Court did not base its conclusion as to the 2012 Action\n\non that allegedly erroneous ground.\n\n We still must address, though, the appellants'\n\ncontention that the District Court erred by construing the Policy's\n\n\n - 13 -\n\fdefinition of a \"D&O Claim\" to make each of the 2012 subpoenas\n\nmerely a component of a \"Claim\" that \"commenced\" with the issuance\n\nof the 2011 Order and not a \"Claim\" in its own right. Here, too,\n\nwe reject the argument.\n\n The Policy's definition of a \"D&O Claim\" is set forth in\n\nSection III.B.2 of the Policy. As we have noted above, that\n\nprovision defines a \"D&O Claim,\" as relevant here, to include\n\neither \"a written demand . . . for . . . non-monetary relief\" or\n\n\"a civil . . . administrative or regulatory proceeding against any\n\nInsured commenced by\":\n\n (i) the service of a complaint or similar\n pleading;\n (ii) the filing of a notice of charge,\n investigative order or like document; or\n (iii) written notice or subpoena from an\n authority identifying such Insured as an\n entity or person against whom a formal\n proceeding may be commenced.\n\n The appellants contend that the first component of this\n\ntwo-part definition of a \"D&O Claim\" -- the \"written\n\ndemand . . . for . . . non-monetary relief\" -- encompasses each of\n\nthe 2012 subpoenas. The appellants thus contend that this\n\ncomponent of the definition renders each subpoena a \"Claim\" in its\n\nown right.\n\n Black's Law Dictionary, however, defines \"relief\" as\n\n\"[t]he redress or benefit, esp. equitable in nature (such as an\n\ninjunction or specific performance) that a party asks of a court.\"\n\n\n\n - 14 -\n\fRelief, Black's Law Dictionary (10th ed. 2009) (emphasis added);\n\nsee Metro. Prop. & Cas. Ins. Co. v. Morrison, 951 N.E.2d 662, 671\n\n(Mass. 2011) (instructing courts to construe clear policy language\n\naccording to its \"usual and ordinary sense\"). The 2012 subpoenas\n\nwere requests made of a party for information. They were not\n\nrequests made of a court for equitable redress or benefit, such as\n\nspecific performance. See Diamond Glass Cos., Inc. v. Twin City\n\nFire Ins. Co, No. 06-CV-13105, 2008 WL 4613170, at *4 (S.D.N.Y.\n\nAug. 18, 2008) (noting that, based on the \"plain meaning of\n\nrelief,\" a subpoena would not constitute a \"demand[ ] for\n\nnon-monetary relief\" (internal quotation marks omitted)). Thus,\n\nthe text of the component of the definition on which the appellants\n\nrely would appear to refute their position that the definition of\n\na \"D&O Claim\" treats each subpoena as a \"Claim\" in its own right.\n\n The rest of the definition reinforces that conclusion.\n\nSee Starr v. Fordham, 648 N.E.2d 1261, 1269 (Mass. 1995) (noting\n\nthat contract language must be interpreted in the context of the\n\nentire document). The second component of the definition concerns\n\n\"a civil . . . administrative or regulatory proceeding.\" That\n\ncomponent of the definition expressly refers to \"subpoena[s],\"\n\nwhile the component of the definition on which the appellants rely\n\ndoes not. The second component of the definition thus makes clear\n\nthat \"subpoenas\" are components of the \"Claim\" that \"a civil\n\nproceeding\" against an insured constitutes.\n\n\n - 15 -\n\f For this reason, the appellants' preferred construction\n\nof the definition necessarily has the following odd consequence.\n\nIt requires us to construe a portion of that definition that does\n\nnot mention subpoenas at all as if it makes them \"Claim[s]\" in\n\ntheir own right, even though the portion of the definition that\n\nexpressly mentions subpoenas treats them as if they are merely\n\ncomponents of a \"Claim.\" Cf. J.A. Sullivan Corp. v. Commonwealth,\n\n494 N.E.2d 374, 378 (Mass. 1986) (noting that every phrase in a\n\ncontract must be given meaning that, when interpreted relative to\n\nother provisions in the document, gives the contract \"workable and\n\nharmonious\" effect (quoting Charles I. Hosmer, Inc. v.\n\nCommonwealth, 19 N.E.2d 800, 804 (Mass. 1939))).5\n\n The appellants do point to out-of-jurisdiction cases\n\nthat have held that a subpoena, like those at issue here, is itself\n\na \"Claim\" under other D&O insurance policies. See Polychron v.\n\nCrum & Forster Ins. Co., 916 F.2d 461, 463 (8th Cir. 1990);\n\nMinuteman Int'l, Inc. v. Great Am. Ins. Co., No. 03 C 6067, 2004\n\nWL 603482, at *5 (N.D. Ill. Mar. 22, 2004). But, neither of these\n\nprecedents is controlling, as neither was decided by a\n\nMassachusetts court applying Massachusetts law. Nor does either\n\n\n\n 5 The appellants' preferred construction presents an\nadditional complication. Even if we assumed that subpoenas are\n\"Claims\" in their own right, that conclusion does not, on its own,\nimbue them with \"actual or alleged\" \"errors\" such that they state\n\"Wrongful Acts\" and trigger the duty to defend under the Policy.\n\n\n - 16 -\n\fcase, by terms, purport to be interpreting a policy that\n\ndenominates subpoenas to be components of \"Claims\" as expressly as\n\nthe Policy does here, let alone explain how such a policy could be\n\nconstrued to permit a subpoena such as those at issue here to be\n\ndeemed a \"Claim\" in its own right. In fact, multiple other courts\n\nhave reached the opposite conclusion. See Trice v. Emp'rs\n\nReinsurance Corp., 124 F.3d 205 (Table), 1997 WL 449736, *3 (7th\n\nCir. 1997); National Fire Ins. v. Bartolazo, 27 F.3d 518, 519 (11th\n\nCir. 1994); Diamond Glass Cos., 2008 WL 4613170, at *4.\n\n Thus, while we are mindful that we must construe\n\nambiguous policy language to favor coverage, see Metro. Prop. &\n\nCas. Ins. Co., 951 N.E.2d at 671 (setting forth the interpretive\n\nprinciple -- known as contra proferentem -- that ambiguous contract\n\nlanguage should be interpreted in favor of coverage against the\n\ndrafter), we conclude that the Policy here is simply too clear in\n\nthe relevant respect to permit us to do so. See id. (instructing\n\ncourts to construe clear policy language according to its \"usual\n\nand ordinary sense\" (internal quotation marks omitted)).\n\nAccordingly, we reject this aspect of the appellants' challenge to\n\nthe District Court's summary judgment ruling.\n\n IV.\n\n The appellants next contend that, insofar as the\n\nDistrict Court did rely on the Interrelated Wrongful Acts Provision\n\nto conclude that they were bringing a \"Claim\" that was \"first made\"\n\n\n - 17 -\n\fwhen the SEC issued the 2011 Order, the District Court erred in\n\ndoing so. The appellants offer a variety of reasons for reaching\n\nthat conclusion. But, we do not find any of them to be persuasive.\n\n A.\n\n The appellants' first argument is premised on the fact\n\nthat the Interrelated Wrongful Acts Provision appears only within\n\nthe section of the Policy entitled \"Limits of Liability.\" The\n\nappellants contend that, because Massachusetts law requires that\n\nambiguities be construed in favor of coverage, see id., the\n\nprovision's placement requires that we construe it to address only\n\nthe \"amount of coverage available\" and not the availability of\n\n\"coverage.\" For that reason, the appellants contend, the\n\nInterrelated Wrongful Acts Provision cannot serve as the basis for\n\na conclusion that the \"Claim\" at issue was \"first made\" when the\n\nSEC issued the 2011 Order such that AXIS did not breach its duty\n\nto defend.\n\n The text of the Interrelated Wrongful Acts Provision,\n\nhowever, is at odds with the appellants' restricted construction\n\nof its import. The text of the provision states that \"[c]overage\n\nunder this Policy shall apply only with respect to Claims deemed\n\nto have been first made during the Policy Period.\" It is unclear\n\nwhat purpose this sentence would serve if the appellants' proposed\n\nconstruction were correct. Section VIII.L of the Policy, moreover,\n\nexpressly states that \"[t]he descriptions in the headings and\n\n\n - 18 -\n\fsubheadings of this Policy are solely for convenience, and form no\n\npart of the terms and conditions of coverage.\" Thus, we read the\n\nprovision to mean just what it says. It addresses \"coverage under\n\nthis Policy\" rather than merely the limits of liability. See id.6\n\n B.\n\n The appellants also contend that the terms of the\n\nInterrelated Wrongful Acts Provision simply do not permit the\n\ndistinct \"Claim[s]\" that the appellants contend triggered AXIS's\n\nduty to defend under the Policy -- namely, each of the 2012\n\nsubpoenas and the Action -- to be \"deemed\" to be part and parcel\n\nof \"one Claim\" that was \"first made\" before the start of the policy\n\nperiod. But, we do not find the various arguments that the\n\nappellants make in support of this aspect of their challenge to\n\nthe grant of summary judgment to AXIS to be persuasive either.\n\n 1.\n\n The appellants first argue that, even if the 2011 Order\n\nmay be understood to refer to an \"error, misstatement, misleading\n\nstatement, act, omission, neglect, or breach of duty,\" it does not\n\n\n 6 Our Court's holding construing Puerto Rico law in Lind-\nHernández v. Hospital Episcopal San Lucas Guayama, 898 F.3d 99\n(1st Cir. 2018), is not to the contrary. The Limits of Liability\nprovision at issue there contained different language, and, in any\nevent, Lind-Hernández held only that the placement of the\n\"Interrelated Wrongful Acts\" provision in the Policy's \"Limits of\nLiability\" section did not indicate that the insurer could use the\nprovision to aggregate \"Claims\" that were levied against different\ninsured parties who fell under different insuring agreements. Id.\nat 108. No such issue is presented here.\n\n\n - 19 -\n\f\"allege[]\" one, as the Policy's definition of a \"Wrongful Act\"\n\nrequires. If that is so, the appellants then contend, the 2011\n\nOrder contains no \"Wrongful Acts,\" which means, in turn, that there\n\nis no basis for concluding that either the 2012 Action or any of\n\nthe 2012 subpoenas contains \"Wrongful Acts\" that \"share[] a common\n\nnexus\" with any \"Wrongful Acts\" set forth in the 2011 Order.\n\nAccordingly, the appellants contend, the Interrelated Wrongful\n\nActs Provision supplies no basis for treating any of the discrete\n\n2012 SEC filings -- whether the 2012 Action or any of the 2012\n\nsubpoenas -- as if it constitutes one unified \"Claim\" with the\n\n2011 Order, such that the resulting unified \"Claim\" was \"first\n\nmade\" prior to the start of the policy period.\n\n The 2011 Order quite clearly refers to various actions\n\nthat, if they occurred, would constitute violations of the federal\n\nsecurities laws and thus constitute an \"error, misstatement,\n\nmisleading statement, act, omission, neglect, or breach of duty\"\n\nwithin the meaning of the Policy's definition of \"Wrongful Acts.\"\n\nFor example, the 2011 Order clearly stated that the SEC was\n\ninvestigating possible violations of Sections 5(a), 5(c), and\n\n17(a) of the Securities Act and Rule 10b-5, as well as Section\n\n15(a) of the Exchange Act. These possible violations included\n\n\"making false statements of material fact or failing to disclose\n\nmaterial facts concerning . . . BioChemics' business prospects\n\n\n\n\n - 20 -\n\f(including products under development and agreements that the\n\ncompany has entered into).\"\n\n But, there remains the question of whether the 2011 Order\n\nin referring to such misconduct \"allege[s]\" it, as it must in order\n\nto contain a \"Wrongful Act,\" given that the Policy defines a\n\n\"Wrongful Act\" as \"any actual or alleged error, misstatement,\n\nmisleading statement, act, omission, neglect, or breach of duty.\"\n\n(Emphasis added).7\n\n With respect to their contention that the 2011 Order\n\ncontains no such allegations, the appellants point out that the\n\n2011 Order simply noted that the SEC \"ha[d] information that\n\ntend[ed] to show\" that violations had occurred. The appellants\n\nnote, too, that the 2011 Order goes on to list what it describes\n\nas merely \"possible\" violations where certain persons \"may have\n\nbeen\" engaging in actions that ran afoul of various securities\n\nlaws. Moreover, in the letter accompanying the September 2011\n\n\n\n 7\n A \"Wrongful Act\" is defined with reference to whether there\nis \"any . . . alleged error, misstatement, misleading statement,\nact, omission, neglect, or breach of duty,\" even though the duty\nto defend provision refers to \"any Claim made against the Insureds\nalleging a Wrongful Act.\" (Emphases added). The parties in the\ncourse of their briefs frequently refer to whether the 2011 Order\nand the subpoenas \"allege[]\" any \"Wrongful Acts.\" Considered in\ncontext, we understand those references to be intended to address\nwhether those documents contain \"any . . . alleged error,\nmisstatement, misleading statement, act, omission, neglect, or\nbreach of duty\" and not the more metaphysical question of whether\nthose documents \"allege[]\" \"an alleged error, misstatement,\nmisleading statement, act, omission, neglect, or breach of duty.\"\n\n\n - 21 -\n\fsubpoena, the appellants emphasize, the SEC pointedly noted that\n\nthe \"investigation . . . should not be construed as an indication\n\nby the [SEC] that any violation of law has occurred.\"\n\n To show that these qualified references to misconduct in\n\nthe 2011 Order do not \"allege[]\" that misconduct, the appellants\n\ncite to cases that conclude that similar investigative filings did\n\nnot \"allege\" the misconduct referenced in them. See Emp'rs' Fire\n\nIns. Co. v. ProMedica Health Sys., Inc., 524 F. App'x. 241, 247\n\n(6th Cir. 2013); MusclePharm Corp. v. Liberty Ins. Underwriters,\n\nInc., 712 F. App'x. 745, 756 (10th Cir. 2017). But other courts\n\nhave held just the opposite. See Patriarch Partners, LLC v. AXIS\n\nIns. Co., 16-CV-2277 (VEC), 2017 WL 4233078, at *6 (S.D.N.Y. Sept.\n\n22, 2017); Weaver v. Axis Surplus Ins. Co., No. 13-CV-7374 (SJF),\n\n2014 WL 5500667, at *12 (E.D.N.Y. Oct. 30, 2014), aff'd, 639 F.\n\nApp'x. 764 (2d Cir. 2016); Nat'l Stock Exch. v. Fed. Ins. Co., No.\n\n06 C 1603, 2007 WL 1030293, at *5 (N.D. Ill. Mar. 30, 2007); Morden\n\nv. XL Specialty Ins., 177 F. Supp. 3d 1320, 1330 (D. Utah 2016).\n\nMoreover, none of these precedents are from Massachusetts courts\n\nconstruing Massachusetts law. Nor is the word \"allege[]\" in and\n\nof itself so clearly restrictive that -- simply by virtue of that\n\nword -- the Policy must be construed to ensure that it does not\n\nprovide coverage for any loss arising from, or trigger the duty to\n\ndefend against, an SEC Order of the sort that is at issue here.\n\nAnd the appellants develop no argument to the contrary. Thus, it\n\n\n - 22 -\n\fis certainly not clear that the 2011 Order fails to \"allege[]\" any\n\n\"Wrongful Acts.\"\n\n The appellants may mean to argue that the term \"alleged\"\n\nin the Policy's definition of \"Wrongful Acts\" is at least ambiguous\n\nas to whether it encompasses the qualified references to the\n\nmisconduct that the 2011 Order contains and thus that their\n\nproposed construction prevails due to the contra proferentem\n\ninterpretive rule. But we do not see how such an argument can\n\nsucceed in this case.\n\n To be sure, ambiguities must be construed in favor of\n\ncoverage for the insured. See Metro. Prop. & Cas. Ins. Co., 951\n\nN.E.2d at 671. But, as AXIS notes, the appellants seek in this\n\nvery case to show that the 2012 subpoenas triggered AXIS's duty to\n\ndefend under the Policy, even though the Policy is clear that a\n\n\"Claim\" must \"allege[]\" a \"Wrongful Act\" in order for it to trigger\n\nthe duty to defend. As a result, the 2012 subpoenas could be\n\ncovered under the Policy only if the word \"allege[]\" could be\n\nconstrued to encompass an SEC investigative filing that makes no\n\nmention of \"Wrongful Acts\" and merely refers back to a filing that\n\ndenotes them in a qualified manner. As favorable as the contra\n\nproferentem rule may be to insureds, the appellants may not rely\n\nupon that interpretive guide to advance an argument that would\n\nrequire us to construe the same word -- here, \"allege[]\" -- to\n\nmean two diametrically opposed things in this very case. Cf.\n\n\n - 23 -\n\fHartford Cas. Ins. Co. v. Am. Dairy and Food Consulting Labs.,\n\nInc., No. 09–CV–00914–OWW–DLB, 2009 WL 4269603, at *12 (E.D. Cal.\n\nNov. 25, 2009) (\"[I]f a pled claim is internally inconsistent with\n\nitself, the inconsistencies may cancel each other out and render\n\nthe claim subject to dismissal for failure to state a claim.\");\n\nSteiner v. Twentieth Century–Fox Film Corp., 140 F. Supp. 906, 908\n\n(S.D. Cal. 1953) (\"[N]o authority is known . . . which permits\n\nblowing hot and cold in the same cause of action.\"). Yet the\n\nappellants' logic would require us to do just that.8\n\n It may be that the appellants also separately mean to\n\nargue that the 2012 subpoenas cannot be said to be part of any\n\n\"Claim\" that was \"first made\" when the 2011 Order was issued,\n\nbecause those subpoenas do not contain any \"Wrongful Acts.\" The\n\nappellants are right that, insofar as the subpoenas do not contain\n\nany \"Wrongful Acts\" they cannot be treated as part and parcel of\n\na \"Claim\" that was first made when the 2011 Order was issued on\n\nthe basis of the Interrelated Wrongful Acts Provision. But, a\n\nnecessary premise of this contention is that each subpoena is a\n\n\"Claim\" in its own right. As we explained earlier, see supra\n\n\n 8 To avoid this inconsistency, the appellants in their reply\nbrief argue for the first time that they are entitled to coverage\nfor the 2012 subpoenas because the Policy is ambiguous as to how\nit treats a \"Claim\" that does not contain any \"Wrongful Acts\" and\nthat ambiguity should inure to the benefit of the insured party.\nBut in addition to the fact that new arguments in reply briefs are\nwaived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\n1998), the plain terms of the Policy preclude this contention.\n\n\n - 24 -\n\fSection III, however, the plain terms of the definition of a \"D&O\n\nClaim\" compel the conclusion that the 2012 subpoenas are -- by\n\nvirtue of the second component of that definition -- merely\n\ncomponents of the \"Claim\" constituted by the\n\n\"civil . . . administrative or regulatory proceeding against\"\n\nBioChemics and Masiz.9\n\n And, in any event, the appellants cannot rightly contend\n\nthat the 2012 subpoenas, which they concede contain no references\n\nto misconduct, nonetheless somehow allege \"Wrongful Acts\" for\n\npurposes of triggering the duty to defend, while simultaneously\n\ncontending that the 2011 Order, which indisputably does contain\n\nreferences to misconduct, does not allege \"Wrongful Acts.\" But,\n\nfor reasons we have explained, the plain language of the Policy\n\nrequires the appellants to make such an internally inconsistent\n\nargument if they are to explain how the subpoenas could trigger a\n\n\n 9 We suppose it is not entirely clear whether the \"Claim\" of\nwhich the 2012 subpoenas are best understood to be a part was the\n\"Claim\" that was \"commenced by\" the \"investigative order\" that the\nSEC issued on May 5, 2011 or the \"Claim\" that was \"commenced\" by\nthe filings of the first of the subpoenas. But, that ambiguity is\nof no significance here. Insofar as the subpoenas are part of the\n\"Claim\" commenced by the issuance of the 2011 Order, they are\nplainly part of a \"Claim\" that was \"first made\" prior to the policy\nperiod. And, insofar as the subpoenas are part of a \"Claim\" that\ncommenced upon the first of those subpoenas having been issued and\nthat then culminated in the 2012 Action, that \"Claim\" -- at least\ngiven the arguments presented here -- would still have been \"first\nmade\" prior to the start of the policy period, if the \"Wrongful\nActs\" contained in the 2012 Action share a \"common nexus\" with the\n\"Wrongful Acts\" that the 2011 Order may fairly be construed to\nhave contained.\n\n - 25 -\n\fduty to defend, given that such a duty is only triggered by a\n\n\"Claim\" \"alleging a Wrongful Act.\"\n\n 2.\n\n We turn, then, to the appellants' next contention. Here,\n\nthe appellants challenge the way in which the District Court\n\napplied the Interrelated Wrongful Acts Provision in deeming the\n\n\"Claim\" that encompassed the 2012 Action and the \"Claim\" that\n\nencompassed the 2011 Order to be \"one Claim.\" The appellants press\n\nthis point by arguing that, even if the 2012 Action contained\n\n\"Wrongful Acts,\" the 2011 Order described the misconduct that it\n\nmay be said to have \"alleged\" in too diffuse a manner to permit\n\nthe conclusion, pursuant to the Interrelated Wrongful Acts\n\nProvision, that it contained \"Wrongful Acts\" that share \"a common\n\nnexus\" with those contained in the 2012 Action.10 Thus, the\n\nappellants contend, the Interrelated Wrongful Acts Provision\n\naffords no basis for deeming these two otherwise distinct\n\n\"Claim[s]\" to be \"one Claim.\"\n\n The appellants fail to identify any authority, however,\n\nto support the proposition that the Interrelated Wrongful Acts\n\nProvision implicitly establishes some threshold of specificity\n\nthat was not met here but that must be met before a \"Wrongful Act\"\n\n\n 10The appellants do not separately contend that we should\ngrant them relief for the 2012 Action -- which clearly contains\n\"Wrongful Acts\" -- even if we find that they are not entitled to\nrelief for the 2012 subpoenas.\n\n\n - 26 -\n\fcontained in one \"Claim\" may be said to \"share a common nexus\"\n\nwith a \"Wrongful Act\" contained in another. Instead, the\n\nappellants rely for the assertion that such an implicit threshold\n\nof specificity exists -- and that it has not been met here -- only\n\non cases that require courts to perform a \"detailed comparison of\n\nthe facts underlying pre and post Policy claims.\" See, e.g.,\n\nAllmerica Fin. Corp. v. Certain Underwriters at Lloyd's, London,\n\n871 N.E.2d 418, 430 (Mass. 2007); Mass. Insurers Insolvency Fund\n\nv. Redland Ins. Co., 891 N.E.2d 718 (Mass. App. Ct. 2008) (table).\n\nBut, those cases just show that a detailed comparison of \"Wrongful\n\nActs\" in distinct \"Claims\" is required before a determination that\n\nthey are \"interrelated\" can be made. They do not purport to\n\nestablish a threshold of specificity that must be met before that\n\ninquiry even can be undertaken, let alone one that was not met\n\nhere.\n\n We proceed, then, to consider a related contention that\n\nthe appellants make. Here, the appellants argue that a detailed\n\ncomparison of the \"Wrongful Acts\" contained in the 2011\n\nOrder -- insofar as there are any -- with the \"Wrongful Acts\" that\n\nare contained in the 2012 Action reveals that they do not share a\n\n\"common nexus [in] fact, circumstance, situation, event, [or]\n\ntransaction\" and thus are not \"Interrelated Wrongful Acts.\"\n\n The appellants stake this contention on the fact that\n\nthe 2012 Action includes a reference to at least one \"Wrongful\n\n\n - 27 -\n\fAct\" that occurred after the 2011 Order and the 2011 subpoenas\n\nwere issued. Specifically, the 2012 Action \"allege[s]\" that\n\nBioChemics misled investors regarding the results of a clinical\n\ntrial on the effectiveness of a new ibuprofen cream.\n\n The appellants note that the preliminary results of that\n\ntrial were not available until five months after the SEC issued\n\nits 2011 Order and two months after it issued the last of its 2011\n\nsubpoenas. On that basis, the appellants contend that this\n\n\"Wrongful Act\" could not have been contemplated as part of the\n\nSEC's initial investigation and thus that the 2012\n\nAction -- insofar as it is a \"Claim\" (or, we may posit, part of a\n\n\"Claim\") -- does not contain \"Wrongful Acts\" that share a \"common\n\nnexus [in] fact, circumstance, situation, event, transaction, [or]\n\ncause\" with those referenced in the 2011 Order.\n\n In pressing this point, the appellants appear to accept\n\nthat the \"substantial overlap\" test from Federal Ins. Co. v.\n\nRaytheon Co., 426 F.3d 491 (1st Cir. 2005), is also the test that\n\nwe should use to determine whether the Policy's requirement that\n\n\"Interrelated Wrongful Acts\" share a \"common nexus\" has been met.11\n\nThe appellants thus appear to argue only that, even if we assume\n\n\n\n 11 The appellants appear to do so, we note, even though\nRaytheon was interpreting a different type of exclusionary\nprovision. See id. at 495 (noting that parties in Raytheon were\ncontesting the applicability of the policy's \"prior and pending\nlitigation clause\").\n\n\n - 28 -\n\fthat the 2012 Action contains many \"Wrongful Acts,\" there is\n\none -- misrepresentation concerning the ibuprofen trial -- that\n\ndoes not \"overlap\" with any of the \"Wrongful Acts\" that are\n\nreferenced in the 2011 Order and that, for this reason alone, the\n\n\"substantial overlap\" of the \"Wrongful Acts\" alleged that would\n\notherwise require the aggregation of the \"Claim[s]\" under Raytheon\n\nfails to exist.\n\n But, Raytheon forecloses the conclusion that, under the\n\n\"substantial overlap\" test, the existence of a single\n\nnon-overlapping \"Wrongful Act\" can suffice to preclude the\n\naggregation of distinct \"Claim[s]\" that the Policy's Interrelated\n\nWrongful Acts Provision would otherwise require. In Raytheon, we\n\ncompared a 2002 ERISA complaint with an earlier securities fraud\n\ncomplaint to determine if the two were \"substantially similar\" for\n\nthe purposes of a policy exclusion. Id. at 500. We recognized\n\nthat the ERISA complaint contained several allegations that\n\noccurred after the fraud case's completion. See id. We\n\nnevertheless held that \"substantial [factual] overlap\" existed\n\nbetween the two matters, because many of the factual allegations\n\nin the ERISA action were identical to those in the earlier fraud\n\nsuit. Id. Accordingly, we fail to see how the reference to the\n\nibuprofen trial misrepresentation in the 2012 Action in and of\n\nitself suffices to show that there is no \"substantial overlap\"\n\n\n\n\n - 29 -\n\fbetween the \"Wrongful Acts\" referenced in 2011 Order and those\n\nreferenced in the \"Claim\" encompassing the 2012 Action.\n\n The appellants do cite to multiple cases that, they\n\ncontend, stand for the proposition -- seemingly in contravention\n\nof Raytheon -- that where a single allegation in a recent \"Claim\"\n\ndiffers from the \"Wrongful Acts\" contained in a pre-policy \"Claim,\"\n\nthe insured is entitled to coverage for the entire recent \"Claim,\"\n\nnotwithstanding a prior acts exclusion. But, even if we were to\n\ntreat the appellants' reliance on these cases as an implicit\n\nargument that some test other than the one set forth in Raytheon\n\ngoverns whether the relevant set of \"Wrongful Acts\" are\n\ninterrelated for purposes of this Policy's \"Interrelated Wrongful\n\nActs Provision,\" each of these cases is readily distinguishable\n\nfrom this one.\n\n Brown v. American Int'l Grp., Inc., 339 F. Supp. 2d 336\n\n(D. Mass. 2004), for example, appears to be interpreting Kentucky\n\nlaw and therefore hardly sheds light on how we should treat the\n\ndescribed scenario under Massachusetts law. See id. at 345 n.5.\n\nAllmerica, moreover, compared a pre-policy \"Claim\" containing a\n\nsingle allegation of wrongdoing with a \"Claim\" made during the\n\npolicy period that contained multiple allegations and determined\n\nthat, based on the record, the court could not conclude that any\n\noverlap existed between the two cases. See Allmerica, 871 N.E.2d\n\nat 430. Thus, Allmerica does not even appear to address the\n\n\n - 30 -\n\fsituation where it is uncontested that some \"overlap\" in factual\n\nallegations does exist, notwithstanding some non-overlapping\n\nallegations.\n\n The appellants do also rely on Redland, which is a\n\nMassachusetts case applying Massachusetts law. There, the court\n\ncompared two pre-policy \"Claims\" with a \"Claim\" issued during the\n\npolicy period. The court determined that, despite the existence\n\nof some overlapping allegations, the \"bulk\" or \"heart\" of the more\n\nrecent allegations occurred well after the pre-policy \"Claims\"\n\nwere issued. 2008 WL 3342991 at *2. The court therefore\n\ndetermined that there was not enough overlap to trigger the\n\nexclusion. Id. But, the appellants do not explain why the one\n\npoint of non-overlap that they identify -- the ibuprofen\n\ntrial -- suffices to show that the \"bulk\" or \"heart\" of the\n\n\"Wrongful Acts\" contained in the 2012 Action do not \"substantially\n\noverlap\" with those contained in the 2011 Order. Indeed, it\n\nappears that the court in Redland is tacitly endorsing the\n\n\"substantial overlap\" test from Raytheon.\n\n Thus, at least given the arguments advanced to us on\n\nappeal, the appellants' argument that the \"Wrongful Acts\" listed\n\nin the 2012 Action are not \"interrelated\" with those contained in\n\nthe 2011 Order due to the diffuse nature of the allegations those\n\nfilings contain is not persuasive. Accordingly, we reject the\n\nappellants' contention that, due to the diffuse nature of the\n\n\n - 31 -\n\fdescription of the acts in the SEC filings, the District Court\n\nerred in relying as it did on the Interrelated Wrongful Acts\n\nProvision in granting summary judgment to AXIS.\n\n V.\n\n We must consider one last argument, which concerns only\n\na portion of the District Court's grant of summary judgment to\n\nAXIS. The appellants contend that, even if we disagree with the\n\nappellants' arguments regarding AXIS's duty to defend the\n\n\"Claim[s]\" encompassing the 2012 subpoenas and 2012 Action\n\ngenerally, we must still hold that AXIS has a duty to defend the\n\n\"Claims\" against Masiz individually.\n\n The contention relies on language in the Policy covering\n\n\"Claims\" \"first made against such Insured . . . during the Policy\n\nPeriod.\" The argument is that this language indicates that the\n\nduty to defend is only triggered when a \"Claim\" \"is first made\n\nagainst [a] particular insured.\" The argument then proceeds that\n\neven though a \"Claim\" had been made against BioChemics at the time\n\nthe 2011 Order was issued, no \"Claim\" had been made against Masiz\n\nas of that time. The contention is that the earliest point in\n\nwhich a \"Claim\" had been made against Masiz was the moment that he\n\nwas served by the SEC with one of the 2012 subpoenas, which is an\n\nevent that occurred during the policy period.\n\n In so arguing, the appellants rely on the analysis in\n\nTranSched Sys. Ltd. v. Fed. Ins. Co., 958 F. Supp. 2d 331 (D.R.I.\n\n\n - 32 -\n\f2013). But, the dispute there centered on whether the phrase \"such\n\nInsured\" applied to a party who was neither an \"insured\" nor\n\nseeking coverage. Id. at 336-37. Here, by contrast, the dispute\n\nconcerns whether the 2011 Order and pre-Policy subpoenas were clear\n\nenough to inform Masiz, who is an insured seeking coverage, that\n\nhe was a target of the SEC's investigation commenced by the 2011\n\nOrder. Given that the Court's analysis in TranSched does not speak\n\nat all to that type of question, we fail to see how that case is\n\ninstructive here.\n\n To the extent that this argument rests on the fact that\n\nthe 2011 Order did not \"allege[]\" \"Wrongful Acts\" performed by\n\nMasiz due to the qualified nature of the only misconduct therein\n\ndescribed, we have already explained why that contention is\n\nuntenable here. Qualified though these references to misconduct\n\nwere, they did suffice to \"allege[]\" \"Wrongful Acts.\"\n\n It is possible that the appellants mean to argue that\n\nthe 2011 Order does not constitute a \"Claim\" made against Masiz\n\nbecause, although he was served with certain of the 2012 subpoenas\n\nand named as co-defendant in the 2012 Action, he was not similarly\n\nserved with or named in the 2011 Order. But, here too, we are\n\nunpersuaded.\n\n The appellants do invoke, seemingly in support of this\n\ncontention, a number of precedents that concern private suits in\n\nwhich the complaints named particular defendants, the most\n\n\n - 33 -\n\fdirectly analogous of which is Medical Mut. Ins. Co. of Maine v.\n\nIndian Harbor Ins. Co., 583 F.3d 57 (1st Cir. 2009). There, we\n\nheld that a suit against an insured company that alleged wrongdoing\n\nby some of its officers did not constitute a claim against those\n\nofficers. Id. at 63. But, the relevant document here is not a\n\ncomplaint in a private suit naming a particular defendant. It is\n\nan SEC Order authorizing a private investigation by that agency\n\ninto alleged wrongdoing by a company and persons associated with\n\nit. The appellants identify no precedent that supports the\n\nproposition that a filing of that type must be formally\n\nserved -- as a suit or subpoena must be -- on the insured for it\n\nto constitute a \"Claim\" against him.\n\n Moreover, the Policy expressly identifies an\n\n\"investigative order\" as a component of a \"D&O Claim.\" The 2011\n\nOrder opens with a full paragraph that, in the course of describing\n\nMasiz's past securities violations and the terms of his probation,\n\nidentifies him to be the \"sole officer and director of BioChemics.\"\n\nThe document then proceeds to describe misconduct that, for the\n\nreasons that we have already given, see supra Section IV.B.1,\n\nsuffices to \"allege[]\" \"Wrongful Acts\" within the meaning of the\n\nPolicy and that attribute that possible misconduct to a range of\n\npersons that include not only the company itself but its\n\n\"officers.\" Finally, the Order goes on to state that the SEC\n\n\"ORDERS . . . that a private investigation be made to determine\n\n\n - 34 -\n\fwhether any persons or entities have engaged in, or are about to\n\nengage in, any of the reported acts or practices or any acts or\n\npractices of similar purport or object.\" Accordingly, the \"plain\n\nlanguage\" of Masiz's Policy shows that the 2011 Order -- in\n\nannouncing an investigation of BioChemics's officers and expressly\n\nnaming Masiz as the only one -- is properly deemed a \"Claim\"\n\nagainst not only BioChemics but also Masiz himself. See Nat. Stock\n\nExch., 2007 WL 1030293, at *4-5 (emphasis added).\n\n VI.\n\n For the foregoing reasons we affirm the District Court's\n\ndecisions granting summary judgment in favor of AXIS and denying\n\nthe appellants' Motion for Partial Summary Judgment. The parties\n\nshall bear their own costs.\n\n\n\n\n - 35 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: BIOCHEMICS, INC.; John Masiz, Plaintiffs, Appellants, v. AXIS REINSURANCE COMPANY, Defendant, Appellee. John P. Raucci; Brown & Brown of New York, Inc., Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 17-2059\\n\\n BIOCHEMICS, INC.; JOHN MASIZ,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n AXIS REINSURANCE COMPANY,\\n\\n Defendant, Appellee.\\n\\n JOHN P. RAUCCI; BROWN & BROWN OF NEW YORK, INC.,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Rya W. Zobel, U.S. District Judge]\\n\\n\\n Before\\n\\n Thompson, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Steven L. Schreckinger, with whom Anderson & Kreiger LLP were\\non brief, for appellants.\\n Melinda B. Margolies, with whom Kaufman Borgeest & Ryan LLP,\\nWilliam A. Schneider, and Morrison Mahoney LLP were on brief, for\\nappellee.\\n\\n\\n May 23, 2019\\n\\f BARRON, Circuit Judge. This appeal concerns a 2013 suit\\n\\nthat BioChemics, Inc. (\\\"BioChemics\\\"), a pharmaceutical company\\n\\nbased in Massachusetts, and John Masiz (\\\"Masiz\\\"), its president\\n\\nand chief executive officer, brought in the District of\\n\\nMassachusetts to enforce a directors and officers (\\\"D&O\\\")\\n\\ninsurance policy (the \\\"Policy\\\") with AXIS Reinsurance Company\\n\\n(\\\"AXIS\\\"). BioChemics and Masiz seek damages for what they contend\\n\\nis AXIS's breach, under the Policy, of its \\\"duty to defend\\\" them\\n\\nin connection with a Securities and Exchange Commission (\\\"SEC\\\")\\n\\ninvestigation against the company and its officers.\\n\\n BioChemics and Masiz moved for partial summary judgment\\n\\nin 2013, and the District Court denied the motion. BioChemics,\\n\\nInc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64, 70-71 (D. Mass.\\n\\n2013). They filed a renewed motion for partial summary judgment\\n\\nin 2015, and AXIS cross-moved for summary judgment. AXIS contended\\n\\nin that motion that it did not breach its duty to defend under the\\n\\nPolicy because, among other things, BioChemics and Masiz were\\n\\nseeking to enforce that duty in relation to a \\\"Claim\\\" that -- given\\n\\nwhen the SEC investigation commenced -- was \\\"first made\\\" before\\n\\nthe Policy took effect and thus was not \\\"covered\\\" by the Policy.\\n\\nThe District Court granted AXIS's motion. BioChemics and Masiz\\n\\nnow appeal from the grant of summary judgment to AXIS. We affirm.\\n\\n\\n\\n\\n - 2 -\\n\\f I.\\n\\n The undisputed facts are the following. On May 5, 2011,\\n\\nthe SEC began a \\\"Non-Public Formal Investigation\\\" by issuing a\\n\\nFormal Order captioned \\\"In the Matter of BioChemics, Inc., B-02641\\\"\\n\\n(the \\\"2011 Order\\\"). The 2011 Order mentioned Masiz by name,\\n\\ndescribed him as the sole officer of the company, and identified\\n\\nseveral \\\"possible\\\" securities violations. These \\\"possible\\\"\\n\\nviolations included instances of fraud and misrepresentation,\\n\\nbeginning as early as 2009, that were aimed at distorting the value\\n\\nof BioChemics securities. The 2011 Order also noted that Masiz\\n\\nhad been sanctioned for securities violations in the past and that,\\n\\ndue to those sanctions, he had been barred from serving as an\\n\\nofficer or director of any publicly traded company until 2009.\\n\\n On May 9, 2011, and then again on September 12, 2011,\\n\\nthe SEC served subpoenas on BioChemics. The 2011 subpoenas\\n\\nrequested documents pertaining to, among other things, the\\n\\ncompany's finances, operations, drugs under development,\\n\\ninteractions with pharmaceutical companies, and payments to Masiz.\\n\\nThese subpoenas bore the same caption as the 2011 Order and\\n\\nexpressly referenced the 2011 Order as authorizing their issuance.\\n\\nIn a cover letter that accompanied the September 2011 subpoena,\\n\\nthe SEC stated that the \\\"investigation . . . should not be\\n\\nconstrued as an indication by the [SEC] that any violation of law\\n\\nhas occurred.\\\"\\n\\n\\n - 3 -\\n\\f After receiving the May 2011 subpoena, BioChemics\\n\\nretained legal counsel and a consulting firm to assist with its\\n\\nresponse. At that time, BioChemics had a D&O insurance policy\\n\\nwith Greenwich Insurance Company. BioChemics did not, at any\\n\\npoint, notify that insurer about the ongoing SEC investigation.\\n\\n In October of 2011, BioChemics and Masiz, in his\\n\\nindividual capacity, applied to have AXIS take over as the D&O\\n\\ninsurer for the policy period that ran from November 2011 to\\n\\nNovember 2012. In that application, BioChemics and Masiz\\n\\nrepresented that there were no legal claims pending against them.\\n\\nAXIS agreed to provide the D&O insurance for the requested policy\\n\\nperiod.\\n\\n In January of 2012, the SEC served deposition subpoenas\\n\\non Masiz and other individuals. In March of that same year, the\\n\\nSEC followed up by serving documents subpoenas on BioChemics and\\n\\nMasiz. Each of these 2012 subpoenas -- eight in total -- bore the\\n\\nsame caption as the 2011 Order and the 2011 subpoenas. One of\\n\\nthese subpoenas was served on Masiz in his individual capacity for\\n\\ndeposition testimony and one was served on him in his individual\\n\\ncapacity for document production.\\n\\n Finally, in December of 2012, the SEC commenced an\\n\\nEnforcement Action (\\\"2012 Action\\\") against BioChemics, Masiz, and\\n\\ntwo other individuals. The 2012 Action \\\"allege[d]\\\" that, beginning\\n\\nas early as 2009, Biochemics and Masiz had \\\"engaged in a fraudulent\\n\\n\\n - 4 -\\n\\fscheme\\\" to mislead investors about the company's value. At least\\n\\none of the \\\"allege[d]\\\" misrepresentations, concerning a topical\\n\\nibuprofen product, took place after the 2011 Order and the 2011\\n\\nsubpoenas were issued.\\n\\n After receiving the March 2012 documents subpoenas,\\n\\nBioChemics and Masiz notified AXIS of them, as well as of the\\n\\nsubpoenas that the SEC had issued in January of 2012. AXIS\\n\\n\\\"agree[d] that the SEC Investigation . . . constitute[d] a D&O\\n\\nClaim\\\" under the Policy. AXIS asserted, however, that BioChemics\\n\\nand Masiz were necessarily seeking -- given the terms of the\\n\\nPolicy -- \\\"coverage\\\" for a single \\\"Claim\\\" that encompassed the SEC\\n\\ninvestigation as a whole and that this \\\"Claim\\\" was \\\"first made\\\" in\\n\\nMay of 2011 when the SEC issued the documents subpoena to\\n\\nBioChemics and thus that this \\\"Claim\\\" was \\\"first made\\\" \\\"prior to\\n\\nthe inception of the Policy Period.\\\"1 On the basis of that\\n\\nassertion, AXIS stated that \\\"because the Claim was not made during\\n\\nthe Policy Period, coverage is not available for the SEC\\n\\nInvestigation.\\\"\\n\\n AXIS later took the same position with respect to the\\n\\n2012 Action. It concluded that the 2012 Action was also part of\\n\\nthe same single \\\"Claim\\\" that was \\\"first made\\\" when the SEC issued\\n\\n\\n\\n\\n 1BioChemics and Masiz had not informed the insurer about the\\n2011 Order at the time that AXIS denied coverage.\\n\\n\\n - 5 -\\n\\fthe May 2011 documents subpoena, which was prior to the start of\\n\\nthe policy period.\\n\\n In response, on February 27, 2013, BioChemics and Masiz\\n\\nsued AXIS in Massachusetts Superior Court. BioChemics and Masiz\\n\\nalleged breach of contract and breach of fiduciary duty, under\\n\\nMassachusetts law, based on the contention that AXIS had breached\\n\\nits duty to defend under the Policy. The case was subsequently\\n\\nremoved to the United States District Court for the District of\\n\\nMassachusetts based on diversity jurisdiction. 28 U.S.C. § 1332.\\n\\nBioChemics and Masiz filed a Motion for Partial Summary Judgment\\n\\nin the District Court on June 5, 2013. They argued that each of\\n\\nwhat they contended were the \\\"Claim[s]\\\" that triggered AXIS's duty\\n\\nto defend under the Policy -- respectively, each of the 2012\\n\\nsubpoenas and the 2012 Action -- had been brought by the SEC after\\n\\nthe policy period began to run and thus was \\\"first made\\\" within\\n\\nthe policy period.\\n\\n The District Court denied that motion in August of 2013.\\n\\nBioChemics, Inc. v. Axis Reinsurance Co., 963 F. Supp. 2d 64 (D.\\n\\nMass. 2013). In reaching this decision, the District Court did\\n\\nnot address the relevance of the 2011 Order, as BioChemics and\\n\\nMasiz had not yet disclosed the 2011 Order to AXIS or the District\\n\\nCourt.\\n\\n On February 14, 2014, BioChemics and Masiz filed a\\n\\nrenewed Motion for Partial Summary Judgment. They again argued\\n\\n\\n - 6 -\\n\\fthat, under the Policy, AXIS had a duty to defend that was\\n\\ntriggered by \\\"Claim[s]\\\" -- each of the 2012 subpoenas and the 2012\\n\\nAction -- that had been \\\"first made\\\" during the policy period.\\n\\nAXIS cross-filed a Motion for Summary Judgment. AXIS argued that\\n\\nit had no such duty because, among other things, the SEC filings\\n\\nwere properly treated as a single \\\"Claim\\\" that had been \\\"first\\n\\nmade\\\" when the SEC issued the May 2011 documents subpoena and thus\\n\\nthat was \\\"first made\\\" prior to the policy period.\\n\\n On January 6, 2015, the District Court entered an order\\n\\ngranting AXIS's Motion for Summary Judgment and denying BioChemics\\n\\nand Masiz's Motion for Partial Summary Judgment. BioChemics, Inc.\\n\\nv. Axis Reinsurance Co., 83 F. Supp. 3d 405 (D. Mass. 2015)\\n\\n[hereinafter BioChemics II]. By that time, the District Court had\\n\\nbeen made aware of the 2011 Order. Equipped with that knowledge,\\n\\nthe District Court held that the 2012 Action, and the multiple\\n\\n2012 subpoenas, were all part of a \\\"Claim\\\" that had been \\\"first\\n\\nmade\\\" when the 2011 Order issued (May 5, 2011). Id. at 408.\\n\\nBioChemics and Masiz then appealed the District Court's order.2\\n\\n\\n\\n\\n 2 The Policy sets forth AXIS's \\\"duty to defend\\\" and its duty\\nto cover \\\"defense costs\\\" under separate provisions. BioChemics\\nand Masiz's complaint requested the recovery only of \\\"damages\\ncaused by [AXIS's] breach of . . . its duty to defend.\\\" We proceed\\non the understanding that the parties, in referring to \\\"coverage\\\"\\nunder the Policy, are referring to AXIS's duty to defend.\\n\\n\\n - 7 -\\n\\f II.\\n\\n The Policy incorporates four separate Insuring\\n\\nAgreements: the D&O Corporate Liability Agreement, the Employment\\n\\nPractices Liability Agreement, the Fiduciary Liability Agreement,\\n\\nand the Outside Executive Liability Agreement. The only agreement\\n\\nthat is at issue in this appeal is the D&O Corporate Liability\\n\\nAgreement.\\n\\n That agreement obligates AXIS to cover \\\"all Loss on\\n\\nbehalf of any Insured arising from any D&O Claim for a Wrongful\\n\\nAct . . . first made against such Insured . . . during the Policy\\n\\nPeriod .\\\"3 The Policy defines \\\"Loss\\\" as \\\"the amount(s) which the\\n\\nInsureds become legally obligated to pay on account of a Claim,\\n\\nincluding damages, judgments, any award of pre-judgment and post-\\n\\njudgment interest, settlement amounts, costs and fees awarded\\n\\npursuant to judgments, and Defense Costs.\\\" (Emphasis added). The\\n\\nPolicy separately provides that AXIS has \\\"both the right and duty\\n\\nto defend and appoint counsel with respect to any Claim made\\n\\nagainst the Insureds alleging a Wrongful Act, even if such a Claim\\n\\nis groundless, false or fraudulent.\\\"\\n\\n The Policy defines a \\\"D&O Claim\\\" as:\\n\\n a. a written demand against an Insured for\\n monetary or nonmonetary relief;\\n\\n\\n\\n 3 The policy period ran from November 13, 2011 to November\\n13, 2013.\\n\\n\\n - 8 -\\n\\f b. a civil, arbitration, administrative or\\n regulatory proceeding against any Insured\\n commenced by:\\n (i) the service of a complaint or similar\\n pleading;\\n (ii) the filing of a notice of charge,\\n investigative order or like document; or\\n (iii) written notice or subpoena from an\\n authority identifying such Insured as an\\n entity or person against whom a formal\\n proceeding may be commenced; or\\n c. a criminal investigation or proceeding\\n against any Insured Individual commenced by:\\n (i) the return of an indictment, information,\\n or similar pleading; or\\n (ii) written notice or subpoena from an\\n authority identifying such Insured Individual\\n as an individual against whom a formal\\n proceeding may be commenced.\\n\\n A \\\"Wrongful Act,\\\" in turn, is defined as \\\"any actual or\\n\\nalleged error, misstatement, misleading statement, act, omission,\\n\\nneglect, or breach of duty.\\\"\\n\\n There is one more provision that is important for present\\n\\npurposes. Under the Policy's \\\"Limits of Liability\\\" heading, there\\n\\nis a provision [hereinafter \\\"Interrelated Wrongful Acts\\n\\nProvision\\\"] that states:\\n\\n All Claims, including all D&O Claims . . .\\n arising from the same Wrongful Act, Wrongful\\n Third Party Act, and all Interrelated Wrongful\\n Acts shall be deemed one Claim and such Claim\\n shall be deemed to be first made on the earlier\\n date that: (1) any of the Claims is first made\\n against an Insured under this Policy or any\\n prior policy, or (2) valid notice was given by\\n the Insureds under this Policy or any prior\\n policy of any Wrongful Act, Wrongful Third\\n Party Act, or any fact, circumstance,\\n situation, transaction or cause which\\n underlies such Claim. Coverage under this\\n\\n\\n - 9 -\\n\\f Policy shall apply only with respect to Claims\\n deemed to have been first made during the\\n Policy Period and reported in writing to the\\n Insurer in accordance with the terms herein.\\n\\nThe Policy earlier separately defines \\\"Interrelated Wrongful Acts\\\"\\n\\nas \\\"any and all Wrongful Acts that have as a common nexus any fact,\\n\\ncircumstance, situation, event, transaction, cause or series of\\n\\ncausally or logically connected facts, circumstances, situations,\\n\\nevents, transactions or causes.\\\"4\\n\\n With that background in place, we now turn to the merits\\n\\nof the parties' contentions. Because we are reviewing a grant of\\n\\nsummary judgment to AXIS, we must affirm the order below if there\\n\\nis no genuine issue of material fact and AXIS is entitled to\\n\\njudgment as a matter of law. See Utica Mut. Ins. Co. v. Herbert\\n\\nH. Landy Ins. Agency, Inc., 820 F.3d 36, 41 (1st Cir. 2016). Our\\n\\nreview is de novo. See id. Moreover, in this case, only \\\"the\\n\\ninterpretation and application of the [insurance] policy language\\\"\\n\\nare in dispute. Massamont Ins. Agency, Inc. v. Utica Mut. Ins.\\n\\nCo., 489 F.3d 71, 72 (1st Cir. 2007) (citation omitted). We review\\n\\nthose issues of interpretation and application de novo as well.\\n\\nId.\\n\\n\\n\\n\\n 4\\n The Policy also includes a section on \\\"Exclusions\\\" outlining\\nseveral circumstances under which AXIS will not bear liability for\\n\\\"Claims\\\" against the insured parties. However, it appears that\\nneither party argues that any of these \\\"Exclusions\\\" apply to the\\ninstant matter.\\n\\n\\n - 10 -\\n\\f III.\\n\\n BioChemics and Masiz, the appellants, begin by\\n\\ncontending that the District Court erred in ruling that the \\\"Claim\\\"\\n\\nthat triggered AXIS's duty to defend had been \\\"first made\\\" when\\n\\nthe SEC issued the 2011 Order in May of that year -- and thus prior\\n\\nto the start of the policy period, which began in November of 2011.\\n\\nThe appellants contend that the District Court based that ruling\\n\\nsolely on a construction of the definition of \\\"D&O Claim\\\" in the\\n\\nPolicy and thus without reference to the Interrelated Wrongful\\n\\nActs Provision. The appellants then go on to contend that this\\n\\nconstruction of the definition of \\\"D&O Claim\\\" was mistaken.\\n\\n To make that case, the appellants assert that the Policy\\n\\ndefines a \\\"D&O Claim\\\" in a way that makes the 2011 Order, each of\\n\\nthe various subpoenas issued in its wake, and the 2012 Action a\\n\\n\\\"Claim\\\" in its own right, rather than merely components of a\\n\\n\\\"Claim\\\" that encompasses the SEC investigation as a whole. Thus,\\n\\nthe appellants contend, the District Court's sole reason for\\n\\ntreating the 2012 subpoenas and the 2012 Action as part of a\\n\\n\\\"Claim\\\" that was \\\"first made\\\" when the SEC issued the 2011 Order\\n\\nand thus before the policy period began rests on a mistaken\\n\\nconstruction of the Policy's definition of a \\\"D&O Claim.\\\"\\n\\n The appellants appear to rely for their argument about\\n\\nthe nature of the District Court's reasoning on the following\\n\\nportions of the District Court's ruling:\\n\\n\\n - 11 -\\n\\f The policy here defines a \\\"Claim\\\" broadly to\\n include, inter alia, any \\\"civil, arbitration,\\n administrative or regulatory proceeding\\n against any Insured commenced by . . . the\\n filing of a notice of charge, investigative\\n order, or like document.\\\" The triggering\\n events are all part of a single SEC\\n Investigation under the Formal Order. Each\\n subpoena was issued under, and referred to,\\n the original Formal Order, and investigated\\n the same officers and company for the same\\n pattern of security violations through public\\n material misstatements. Under the clear\\n language of the Policy, and on the record\\n before the [C]ourt, the subpoenas all\\n constituted a single \\\"Claim\\\" under the policy.\\n\\n The only remaining question is whether the\\n Claim at issue is covered under the AXIS\\n policy. A Claim is only covered under the\\n policy if \\\"deemed to have been first made\\n during the Policy Period.\\\" A claim \\\"shall be\\n deemed to be first made on the earlier date\\n that: (1) any of the Claims is first made\\n against an Insured under this Policy or any\\n prior policy . . . .\\\" Docket # 30, Ex. A\\n (Policy) § V.A. The Formal Order issued on\\n May 5, 2011. The policy went into effect on\\n November 13, 2011. The investigation and\\n enforcement action, the Claim at issue, was\\n thus \\\"first made\\\" before the policy period and\\n is, therefore, not covered under the policy.\\n\\nBioChemics II, 83 F. Supp. 3d at 407-08 (internal citations\\n\\nomitted) (alterations in original).\\n\\n The problem with the appellants' argument is that the\\n\\nDistrict Court does not purport in these passages to rely solely\\n\\non the Policy's definition of a \\\"D&O Claim\\\" to reach the conclusion\\n\\nthat the 2011 Order, the subpoenas, and the 2012 Action are part\\n\\nand parcel of one \\\"Claim.\\\" Rather, the District Court explains in\\n\\n\\n\\n - 12 -\\n\\fthis passage that the 2012 Action may be deemed to be part of one\\n\\n\\\"Claim\\\" that was \\\"first made\\\" prior to the start of the policy\\n\\nperiod by citing to the portion of the Interrelated Wrongful Acts\\n\\nProvision that states that \\\"[a] Claim 'shall be deemed to be first\\n\\nmade on the earlier date that: (1) any of the Claims is first made\\n\\nagainst an Insured under this Policy or any prior policy.'\\\" Id.\\n\\nat 408 (citing \\\"§ V.A\\\" of the Policy -- the Interrelated Wrongful\\n\\nActs Provision) (alteration in original).\\n\\n In other words, the District Court appears to have\\n\\nconcluded that, pursuant to the Policy's definition of a \\\"D&O\\n\\nClaim,\\\" the 2012 Action constitutes a \\\"Claim\\\" that was distinct\\n\\nfrom the \\\"Claim\\\" of which the 2011 Order was a part. But, the\\n\\nDistrict Court then went on to conclude, those two otherwise\\n\\ndistinct \\\"Claim[s]\\\" must be deemed to be \\\"one Claim\\\" pursuant to\\n\\nthe Interrelated Wrongful Acts Provision.\\n\\n Thus, the appellants' contention that the District Court\\n\\nerred in treating the 2012 Action as part of a \\\"Claim\\\" that was\\n\\n\\\"first made\\\" before the start of the policy period because the\\n\\nDistrict Court relied on a mistaken construction of the Policy's\\n\\ndefinition of a \\\"D&O Claim\\\" fails for a simple reason. The\\n\\nDistrict Court did not base its conclusion as to the 2012 Action\\n\\non that allegedly erroneous ground.\\n\\n We still must address, though, the appellants'\\n\\ncontention that the District Court erred by construing the Policy's\\n\\n\\n - 13 -\\n\\fdefinition of a \\\"D&O Claim\\\" to make each of the 2012 subpoenas\\n\\nmerely a component of a \\\"Claim\\\" that \\\"commenced\\\" with the issuance\\n\\nof the 2011 Order and not a \\\"Claim\\\" in its own right. Here, too,\\n\\nwe reject the argument.\\n\\n The Policy's definition of a \\\"D&O Claim\\\" is set forth in\\n\\nSection III.B.2 of the Policy. As we have noted above, that\\n\\nprovision defines a \\\"D&O Claim,\\\" as relevant here, to include\\n\\neither \\\"a written demand . . . for . . . non-monetary relief\\\" or\\n\\n\\\"a civil . . . administrative or regulatory proceeding against any\\n\\nInsured commenced by\\\":\\n\\n (i) the service of a complaint or similar\\n pleading;\\n (ii) the filing of a notice of charge,\\n investigative order or like document; or\\n (iii) written notice or subpoena from an\\n authority identifying such Insured as an\\n entity or person against whom a formal\\n proceeding may be commenced.\\n\\n The appellants contend that the first component of this\\n\\ntwo-part definition of a \\\"D&O Claim\\\" -- the \\\"written\\n\\ndemand . . . for . . . non-monetary relief\\\" -- encompasses each of\\n\\nthe 2012 subpoenas. The appellants thus contend that this\\n\\ncomponent of the definition renders each subpoena a \\\"Claim\\\" in its\\n\\nown right.\\n\\n Black's Law Dictionary, however, defines \\\"relief\\\" as\\n\\n\\\"[t]he redress or benefit, esp. equitable in nature (such as an\\n\\ninjunction or specific performance) that a party asks of a court.\\\"\\n\\n\\n\\n - 14 -\\n\\fRelief, Black's Law Dictionary (10th ed. 2009) (emphasis added);\\n\\nsee Metro. Prop. & Cas. Ins. Co. v. Morrison, 951 N.E.2d 662, 671\\n\\n(Mass. 2011) (instructing courts to construe clear policy language\\n\\naccording to its \\\"usual and ordinary sense\\\"). The 2012 subpoenas\\n\\nwere requests made of a party for information. They were not\\n\\nrequests made of a court for equitable redress or benefit, such as\\n\\nspecific performance. See Diamond Glass Cos., Inc. v. Twin City\\n\\nFire Ins. Co, No. 06-CV-13105, 2008 WL 4613170, at *4 (S.D.N.Y.\\n\\nAug. 18, 2008) (noting that, based on the \\\"plain meaning of\\n\\nrelief,\\\" a subpoena would not constitute a \\\"demand[ ] for\\n\\nnon-monetary relief\\\" (internal quotation marks omitted)). Thus,\\n\\nthe text of the component of the definition on which the appellants\\n\\nrely would appear to refute their position that the definition of\\n\\na \\\"D&O Claim\\\" treats each subpoena as a \\\"Claim\\\" in its own right.\\n\\n The rest of the definition reinforces that conclusion.\\n\\nSee Starr v. Fordham, 648 N.E.2d 1261, 1269 (Mass. 1995) (noting\\n\\nthat contract language must be interpreted in the context of the\\n\\nentire document). The second component of the definition concerns\\n\\n\\\"a civil . . . administrative or regulatory proceeding.\\\" That\\n\\ncomponent of the definition expressly refers to \\\"subpoena[s],\\\"\\n\\nwhile the component of the definition on which the appellants rely\\n\\ndoes not. The second component of the definition thus makes clear\\n\\nthat \\\"subpoenas\\\" are components of the \\\"Claim\\\" that \\\"a civil\\n\\nproceeding\\\" against an insured constitutes.\\n\\n\\n - 15 -\\n\\f For this reason, the appellants' preferred construction\\n\\nof the definition necessarily has the following odd consequence.\\n\\nIt requires us to construe a portion of that definition that does\\n\\nnot mention subpoenas at all as if it makes them \\\"Claim[s]\\\" in\\n\\ntheir own right, even though the portion of the definition that\\n\\nexpressly mentions subpoenas treats them as if they are merely\\n\\ncomponents of a \\\"Claim.\\\" Cf. J.A. Sullivan Corp. v. Commonwealth,\\n\\n494 N.E.2d 374, 378 (Mass. 1986) (noting that every phrase in a\\n\\ncontract must be given meaning that, when interpreted relative to\\n\\nother provisions in the document, gives the contract \\\"workable and\\n\\nharmonious\\\" effect (quoting Charles I. Hosmer, Inc. v.\\n\\nCommonwealth, 19 N.E.2d 800, 804 (Mass. 1939))).5\\n\\n The appellants do point to out-of-jurisdiction cases\\n\\nthat have held that a subpoena, like those at issue here, is itself\\n\\na \\\"Claim\\\" under other D&O insurance policies. See Polychron v.\\n\\nCrum & Forster Ins. Co., 916 F.2d 461, 463 (8th Cir. 1990);\\n\\nMinuteman Int'l, Inc. v. Great Am. Ins. Co., No. 03 C 6067, 2004\\n\\nWL 603482, at *5 (N.D. Ill. Mar. 22, 2004). But, neither of these\\n\\nprecedents is controlling, as neither was decided by a\\n\\nMassachusetts court applying Massachusetts law. Nor does either\\n\\n\\n\\n 5 The appellants' preferred construction presents an\\nadditional complication. Even if we assumed that subpoenas are\\n\\\"Claims\\\" in their own right, that conclusion does not, on its own,\\nimbue them with \\\"actual or alleged\\\" \\\"errors\\\" such that they state\\n\\\"Wrongful Acts\\\" and trigger the duty to defend under the Policy.\\n\\n\\n - 16 -\\n\\fcase, by terms, purport to be interpreting a policy that\\n\\ndenominates subpoenas to be components of \\\"Claims\\\" as expressly as\\n\\nthe Policy does here, let alone explain how such a policy could be\\n\\nconstrued to permit a subpoena such as those at issue here to be\\n\\ndeemed a \\\"Claim\\\" in its own right. In fact, multiple other courts\\n\\nhave reached the opposite conclusion. See Trice v. Emp'rs\\n\\nReinsurance Corp., 124 F.3d 205 (Table), 1997 WL 449736, *3 (7th\\n\\nCir. 1997); National Fire Ins. v. Bartolazo, 27 F.3d 518, 519 (11th\\n\\nCir. 1994); Diamond Glass Cos., 2008 WL 4613170, at *4.\\n\\n Thus, while we are mindful that we must construe\\n\\nambiguous policy language to favor coverage, see Metro. Prop. &\\n\\nCas. Ins. Co., 951 N.E.2d at 671 (setting forth the interpretive\\n\\nprinciple -- known as contra proferentem -- that ambiguous contract\\n\\nlanguage should be interpreted in favor of coverage against the\\n\\ndrafter), we conclude that the Policy here is simply too clear in\\n\\nthe relevant respect to permit us to do so. See id. (instructing\\n\\ncourts to construe clear policy language according to its \\\"usual\\n\\nand ordinary sense\\\" (internal quotation marks omitted)).\\n\\nAccordingly, we reject this aspect of the appellants' challenge to\\n\\nthe District Court's summary judgment ruling.\\n\\n IV.\\n\\n The appellants next contend that, insofar as the\\n\\nDistrict Court did rely on the Interrelated Wrongful Acts Provision\\n\\nto conclude that they were bringing a \\\"Claim\\\" that was \\\"first made\\\"\\n\\n\\n - 17 -\\n\\fwhen the SEC issued the 2011 Order, the District Court erred in\\n\\ndoing so. The appellants offer a variety of reasons for reaching\\n\\nthat conclusion. But, we do not find any of them to be persuasive.\\n\\n A.\\n\\n The appellants' first argument is premised on the fact\\n\\nthat the Interrelated Wrongful Acts Provision appears only within\\n\\nthe section of the Policy entitled \\\"Limits of Liability.\\\" The\\n\\nappellants contend that, because Massachusetts law requires that\\n\\nambiguities be construed in favor of coverage, see id., the\\n\\nprovision's placement requires that we construe it to address only\\n\\nthe \\\"amount of coverage available\\\" and not the availability of\\n\\n\\\"coverage.\\\" For that reason, the appellants contend, the\\n\\nInterrelated Wrongful Acts Provision cannot serve as the basis for\\n\\na conclusion that the \\\"Claim\\\" at issue was \\\"first made\\\" when the\\n\\nSEC issued the 2011 Order such that AXIS did not breach its duty\\n\\nto defend.\\n\\n The text of the Interrelated Wrongful Acts Provision,\\n\\nhowever, is at odds with the appellants' restricted construction\\n\\nof its import. The text of the provision states that \\\"[c]overage\\n\\nunder this Policy shall apply only with respect to Claims deemed\\n\\nto have been first made during the Policy Period.\\\" It is unclear\\n\\nwhat purpose this sentence would serve if the appellants' proposed\\n\\nconstruction were correct. Section VIII.L of the Policy, moreover,\\n\\nexpressly states that \\\"[t]he descriptions in the headings and\\n\\n\\n - 18 -\\n\\fsubheadings of this Policy are solely for convenience, and form no\\n\\npart of the terms and conditions of coverage.\\\" Thus, we read the\\n\\nprovision to mean just what it says. It addresses \\\"coverage under\\n\\nthis Policy\\\" rather than merely the limits of liability. See id.6\\n\\n B.\\n\\n The appellants also contend that the terms of the\\n\\nInterrelated Wrongful Acts Provision simply do not permit the\\n\\ndistinct \\\"Claim[s]\\\" that the appellants contend triggered AXIS's\\n\\nduty to defend under the Policy -- namely, each of the 2012\\n\\nsubpoenas and the Action -- to be \\\"deemed\\\" to be part and parcel\\n\\nof \\\"one Claim\\\" that was \\\"first made\\\" before the start of the policy\\n\\nperiod. But, we do not find the various arguments that the\\n\\nappellants make in support of this aspect of their challenge to\\n\\nthe grant of summary judgment to AXIS to be persuasive either.\\n\\n 1.\\n\\n The appellants first argue that, even if the 2011 Order\\n\\nmay be understood to refer to an \\\"error, misstatement, misleading\\n\\nstatement, act, omission, neglect, or breach of duty,\\\" it does not\\n\\n\\n 6 Our Court's holding construing Puerto Rico law in Lind-\\nHernández v. Hospital Episcopal San Lucas Guayama, 898 F.3d 99\\n(1st Cir. 2018), is not to the contrary. The Limits of Liability\\nprovision at issue there contained different language, and, in any\\nevent, Lind-Hernández held only that the placement of the\\n\\\"Interrelated Wrongful Acts\\\" provision in the Policy's \\\"Limits of\\nLiability\\\" section did not indicate that the insurer could use the\\nprovision to aggregate \\\"Claims\\\" that were levied against different\\ninsured parties who fell under different insuring agreements. Id.\\nat 108. No such issue is presented here.\\n\\n\\n - 19 -\\n\\f\\\"allege[]\\\" one, as the Policy's definition of a \\\"Wrongful Act\\\"\\n\\nrequires. If that is so, the appellants then contend, the 2011\\n\\nOrder contains no \\\"Wrongful Acts,\\\" which means, in turn, that there\\n\\nis no basis for concluding that either the 2012 Action or any of\\n\\nthe 2012 subpoenas contains \\\"Wrongful Acts\\\" that \\\"share[] a common\\n\\nnexus\\\" with any \\\"Wrongful Acts\\\" set forth in the 2011 Order.\\n\\nAccordingly, the appellants contend, the Interrelated Wrongful\\n\\nActs Provision supplies no basis for treating any of the discrete\\n\\n2012 SEC filings -- whether the 2012 Action or any of the 2012\\n\\nsubpoenas -- as if it constitutes one unified \\\"Claim\\\" with the\\n\\n2011 Order, such that the resulting unified \\\"Claim\\\" was \\\"first\\n\\nmade\\\" prior to the start of the policy period.\\n\\n The 2011 Order quite clearly refers to various actions\\n\\nthat, if they occurred, would constitute violations of the federal\\n\\nsecurities laws and thus constitute an \\\"error, misstatement,\\n\\nmisleading statement, act, omission, neglect, or breach of duty\\\"\\n\\nwithin the meaning of the Policy's definition of \\\"Wrongful Acts.\\\"\\n\\nFor example, the 2011 Order clearly stated that the SEC was\\n\\ninvestigating possible violations of Sections 5(a), 5(c), and\\n\\n17(a) of the Securities Act and Rule 10b-5, as well as Section\\n\\n15(a) of the Exchange Act. These possible violations included\\n\\n\\\"making false statements of material fact or failing to disclose\\n\\nmaterial facts concerning . . . BioChemics' business prospects\\n\\n\\n\\n\\n - 20 -\\n\\f(including products under development and agreements that the\\n\\ncompany has entered into).\\\"\\n\\n But, there remains the question of whether the 2011 Order\\n\\nin referring to such misconduct \\\"allege[s]\\\" it, as it must in order\\n\\nto contain a \\\"Wrongful Act,\\\" given that the Policy defines a\\n\\n\\\"Wrongful Act\\\" as \\\"any actual or alleged error, misstatement,\\n\\nmisleading statement, act, omission, neglect, or breach of duty.\\\"\\n\\n(Emphasis added).7\\n\\n With respect to their contention that the 2011 Order\\n\\ncontains no such allegations, the appellants point out that the\\n\\n2011 Order simply noted that the SEC \\\"ha[d] information that\\n\\ntend[ed] to show\\\" that violations had occurred. The appellants\\n\\nnote, too, that the 2011 Order goes on to list what it describes\\n\\nas merely \\\"possible\\\" violations where certain persons \\\"may have\\n\\nbeen\\\" engaging in actions that ran afoul of various securities\\n\\nlaws. Moreover, in the letter accompanying the September 2011\\n\\n\\n\\n 7\\n A \\\"Wrongful Act\\\" is defined with reference to whether there\\nis \\\"any . . . alleged error, misstatement, misleading statement,\\nact, omission, neglect, or breach of duty,\\\" even though the duty\\nto defend provision refers to \\\"any Claim made against the Insureds\\nalleging a Wrongful Act.\\\" (Emphases added). The parties in the\\ncourse of their briefs frequently refer to whether the 2011 Order\\nand the subpoenas \\\"allege[]\\\" any \\\"Wrongful Acts.\\\" Considered in\\ncontext, we understand those references to be intended to address\\nwhether those documents contain \\\"any . . . alleged error,\\nmisstatement, misleading statement, act, omission, neglect, or\\nbreach of duty\\\" and not the more metaphysical question of whether\\nthose documents \\\"allege[]\\\" \\\"an alleged error, misstatement,\\nmisleading statement, act, omission, neglect, or breach of duty.\\\"\\n\\n\\n - 21 -\\n\\fsubpoena, the appellants emphasize, the SEC pointedly noted that\\n\\nthe \\\"investigation . . . should not be construed as an indication\\n\\nby the [SEC] that any violation of law has occurred.\\\"\\n\\n To show that these qualified references to misconduct in\\n\\nthe 2011 Order do not \\\"allege[]\\\" that misconduct, the appellants\\n\\ncite to cases that conclude that similar investigative filings did\\n\\nnot \\\"allege\\\" the misconduct referenced in them. See Emp'rs' Fire\\n\\nIns. Co. v. ProMedica Health Sys., Inc., 524 F. App'x. 241, 247\\n\\n(6th Cir. 2013); MusclePharm Corp. v. Liberty Ins. Underwriters,\\n\\nInc., 712 F. App'x. 745, 756 (10th Cir. 2017). But other courts\\n\\nhave held just the opposite. See Patriarch Partners, LLC v. AXIS\\n\\nIns. Co., 16-CV-2277 (VEC), 2017 WL 4233078, at *6 (S.D.N.Y. Sept.\\n\\n22, 2017); Weaver v. Axis Surplus Ins. Co., No. 13-CV-7374 (SJF),\\n\\n2014 WL 5500667, at *12 (E.D.N.Y. Oct. 30, 2014), aff'd, 639 F.\\n\\nApp'x. 764 (2d Cir. 2016); Nat'l Stock Exch. v. Fed. Ins. Co., No.\\n\\n06 C 1603, 2007 WL 1030293, at *5 (N.D. Ill. Mar. 30, 2007); Morden\\n\\nv. XL Specialty Ins., 177 F. Supp. 3d 1320, 1330 (D. Utah 2016).\\n\\nMoreover, none of these precedents are from Massachusetts courts\\n\\nconstruing Massachusetts law. Nor is the word \\\"allege[]\\\" in and\\n\\nof itself so clearly restrictive that -- simply by virtue of that\\n\\nword -- the Policy must be construed to ensure that it does not\\n\\nprovide coverage for any loss arising from, or trigger the duty to\\n\\ndefend against, an SEC Order of the sort that is at issue here.\\n\\nAnd the appellants develop no argument to the contrary. Thus, it\\n\\n\\n - 22 -\\n\\fis certainly not clear that the 2011 Order fails to \\\"allege[]\\\" any\\n\\n\\\"Wrongful Acts.\\\"\\n\\n The appellants may mean to argue that the term \\\"alleged\\\"\\n\\nin the Policy's definition of \\\"Wrongful Acts\\\" is at least ambiguous\\n\\nas to whether it encompasses the qualified references to the\\n\\nmisconduct that the 2011 Order contains and thus that their\\n\\nproposed construction prevails due to the contra proferentem\\n\\ninterpretive rule. But we do not see how such an argument can\\n\\nsucceed in this case.\\n\\n To be sure, ambiguities must be construed in favor of\\n\\ncoverage for the insured. See Metro. Prop. & Cas. Ins. Co., 951\\n\\nN.E.2d at 671. But, as AXIS notes, the appellants seek in this\\n\\nvery case to show that the 2012 subpoenas triggered AXIS's duty to\\n\\ndefend under the Policy, even though the Policy is clear that a\\n\\n\\\"Claim\\\" must \\\"allege[]\\\" a \\\"Wrongful Act\\\" in order for it to trigger\\n\\nthe duty to defend. As a result, the 2012 subpoenas could be\\n\\ncovered under the Policy only if the word \\\"allege[]\\\" could be\\n\\nconstrued to encompass an SEC investigative filing that makes no\\n\\nmention of \\\"Wrongful Acts\\\" and merely refers back to a filing that\\n\\ndenotes them in a qualified manner. As favorable as the contra\\n\\nproferentem rule may be to insureds, the appellants may not rely\\n\\nupon that interpretive guide to advance an argument that would\\n\\nrequire us to construe the same word -- here, \\\"allege[]\\\" -- to\\n\\nmean two diametrically opposed things in this very case. Cf.\\n\\n\\n - 23 -\\n\\fHartford Cas. Ins. Co. v. Am. Dairy and Food Consulting Labs.,\\n\\nInc., No. 09–CV–00914–OWW–DLB, 2009 WL 4269603, at *12 (E.D. Cal.\\n\\nNov. 25, 2009) (\\\"[I]f a pled claim is internally inconsistent with\\n\\nitself, the inconsistencies may cancel each other out and render\\n\\nthe claim subject to dismissal for failure to state a claim.\\\");\\n\\nSteiner v. Twentieth Century–Fox Film Corp., 140 F. Supp. 906, 908\\n\\n(S.D. Cal. 1953) (\\\"[N]o authority is known . . . which permits\\n\\nblowing hot and cold in the same cause of action.\\\"). Yet the\\n\\nappellants' logic would require us to do just that.8\\n\\n It may be that the appellants also separately mean to\\n\\nargue that the 2012 subpoenas cannot be said to be part of any\\n\\n\\\"Claim\\\" that was \\\"first made\\\" when the 2011 Order was issued,\\n\\nbecause those subpoenas do not contain any \\\"Wrongful Acts.\\\" The\\n\\nappellants are right that, insofar as the subpoenas do not contain\\n\\nany \\\"Wrongful Acts\\\" they cannot be treated as part and parcel of\\n\\na \\\"Claim\\\" that was first made when the 2011 Order was issued on\\n\\nthe basis of the Interrelated Wrongful Acts Provision. But, a\\n\\nnecessary premise of this contention is that each subpoena is a\\n\\n\\\"Claim\\\" in its own right. As we explained earlier, see supra\\n\\n\\n 8 To avoid this inconsistency, the appellants in their reply\\nbrief argue for the first time that they are entitled to coverage\\nfor the 2012 subpoenas because the Policy is ambiguous as to how\\nit treats a \\\"Claim\\\" that does not contain any \\\"Wrongful Acts\\\" and\\nthat ambiguity should inure to the benefit of the insured party.\\nBut in addition to the fact that new arguments in reply briefs are\\nwaived, see United States v. Torres, 162 F.3d 6, 11 (1st Cir.\\n1998), the plain terms of the Policy preclude this contention.\\n\\n\\n - 24 -\\n\\fSection III, however, the plain terms of the definition of a \\\"D&O\\n\\nClaim\\\" compel the conclusion that the 2012 subpoenas are -- by\\n\\nvirtue of the second component of that definition -- merely\\n\\ncomponents of the \\\"Claim\\\" constituted by the\\n\\n\\\"civil . . . administrative or regulatory proceeding against\\\"\\n\\nBioChemics and Masiz.9\\n\\n And, in any event, the appellants cannot rightly contend\\n\\nthat the 2012 subpoenas, which they concede contain no references\\n\\nto misconduct, nonetheless somehow allege \\\"Wrongful Acts\\\" for\\n\\npurposes of triggering the duty to defend, while simultaneously\\n\\ncontending that the 2011 Order, which indisputably does contain\\n\\nreferences to misconduct, does not allege \\\"Wrongful Acts.\\\" But,\\n\\nfor reasons we have explained, the plain language of the Policy\\n\\nrequires the appellants to make such an internally inconsistent\\n\\nargument if they are to explain how the subpoenas could trigger a\\n\\n\\n 9 We suppose it is not entirely clear whether the \\\"Claim\\\" of\\nwhich the 2012 subpoenas are best understood to be a part was the\\n\\\"Claim\\\" that was \\\"commenced by\\\" the \\\"investigative order\\\" that the\\nSEC issued on May 5, 2011 or the \\\"Claim\\\" that was \\\"commenced\\\" by\\nthe filings of the first of the subpoenas. But, that ambiguity is\\nof no significance here. Insofar as the subpoenas are part of the\\n\\\"Claim\\\" commenced by the issuance of the 2011 Order, they are\\nplainly part of a \\\"Claim\\\" that was \\\"first made\\\" prior to the policy\\nperiod. And, insofar as the subpoenas are part of a \\\"Claim\\\" that\\ncommenced upon the first of those subpoenas having been issued and\\nthat then culminated in the 2012 Action, that \\\"Claim\\\" -- at least\\ngiven the arguments presented here -- would still have been \\\"first\\nmade\\\" prior to the start of the policy period, if the \\\"Wrongful\\nActs\\\" contained in the 2012 Action share a \\\"common nexus\\\" with the\\n\\\"Wrongful Acts\\\" that the 2011 Order may fairly be construed to\\nhave contained.\\n\\n - 25 -\\n\\fduty to defend, given that such a duty is only triggered by a\\n\\n\\\"Claim\\\" \\\"alleging a Wrongful Act.\\\"\\n\\n 2.\\n\\n We turn, then, to the appellants' next contention. Here,\\n\\nthe appellants challenge the way in which the District Court\\n\\napplied the Interrelated Wrongful Acts Provision in deeming the\\n\\n\\\"Claim\\\" that encompassed the 2012 Action and the \\\"Claim\\\" that\\n\\nencompassed the 2011 Order to be \\\"one Claim.\\\" The appellants press\\n\\nthis point by arguing that, even if the 2012 Action contained\\n\\n\\\"Wrongful Acts,\\\" the 2011 Order described the misconduct that it\\n\\nmay be said to have \\\"alleged\\\" in too diffuse a manner to permit\\n\\nthe conclusion, pursuant to the Interrelated Wrongful Acts\\n\\nProvision, that it contained \\\"Wrongful Acts\\\" that share \\\"a common\\n\\nnexus\\\" with those contained in the 2012 Action.10 Thus, the\\n\\nappellants contend, the Interrelated Wrongful Acts Provision\\n\\naffords no basis for deeming these two otherwise distinct\\n\\n\\\"Claim[s]\\\" to be \\\"one Claim.\\\"\\n\\n The appellants fail to identify any authority, however,\\n\\nto support the proposition that the Interrelated Wrongful Acts\\n\\nProvision implicitly establishes some threshold of specificity\\n\\nthat was not met here but that must be met before a \\\"Wrongful Act\\\"\\n\\n\\n 10The appellants do not separately contend that we should\\ngrant them relief for the 2012 Action -- which clearly contains\\n\\\"Wrongful Acts\\\" -- even if we find that they are not entitled to\\nrelief for the 2012 subpoenas.\\n\\n\\n - 26 -\\n\\fcontained in one \\\"Claim\\\" may be said to \\\"share a common nexus\\\"\\n\\nwith a \\\"Wrongful Act\\\" contained in another. Instead, the\\n\\nappellants rely for the assertion that such an implicit threshold\\n\\nof specificity exists -- and that it has not been met here -- only\\n\\non cases that require courts to perform a \\\"detailed comparison of\\n\\nthe facts underlying pre and post Policy claims.\\\" See, e.g.,\\n\\nAllmerica Fin. Corp. v. Certain Underwriters at Lloyd's, London,\\n\\n871 N.E.2d 418, 430 (Mass. 2007); Mass. Insurers Insolvency Fund\\n\\nv. Redland Ins. Co., 891 N.E.2d 718 (Mass. App. Ct. 2008) (table).\\n\\nBut, those cases just show that a detailed comparison of \\\"Wrongful\\n\\nActs\\\" in distinct \\\"Claims\\\" is required before a determination that\\n\\nthey are \\\"interrelated\\\" can be made. They do not purport to\\n\\nestablish a threshold of specificity that must be met before that\\n\\ninquiry even can be undertaken, let alone one that was not met\\n\\nhere.\\n\\n We proceed, then, to consider a related contention that\\n\\nthe appellants make. Here, the appellants argue that a detailed\\n\\ncomparison of the \\\"Wrongful Acts\\\" contained in the 2011\\n\\nOrder -- insofar as there are any -- with the \\\"Wrongful Acts\\\" that\\n\\nare contained in the 2012 Action reveals that they do not share a\\n\\n\\\"common nexus [in] fact, circumstance, situation, event, [or]\\n\\ntransaction\\\" and thus are not \\\"Interrelated Wrongful Acts.\\\"\\n\\n The appellants stake this contention on the fact that\\n\\nthe 2012 Action includes a reference to at least one \\\"Wrongful\\n\\n\\n - 27 -\\n\\fAct\\\" that occurred after the 2011 Order and the 2011 subpoenas\\n\\nwere issued. Specifically, the 2012 Action \\\"allege[s]\\\" that\\n\\nBioChemics misled investors regarding the results of a clinical\\n\\ntrial on the effectiveness of a new ibuprofen cream.\\n\\n The appellants note that the preliminary results of that\\n\\ntrial were not available until five months after the SEC issued\\n\\nits 2011 Order and two months after it issued the last of its 2011\\n\\nsubpoenas. On that basis, the appellants contend that this\\n\\n\\\"Wrongful Act\\\" could not have been contemplated as part of the\\n\\nSEC's initial investigation and thus that the 2012\\n\\nAction -- insofar as it is a \\\"Claim\\\" (or, we may posit, part of a\\n\\n\\\"Claim\\\") -- does not contain \\\"Wrongful Acts\\\" that share a \\\"common\\n\\nnexus [in] fact, circumstance, situation, event, transaction, [or]\\n\\ncause\\\" with those referenced in the 2011 Order.\\n\\n In pressing this point, the appellants appear to accept\\n\\nthat the \\\"substantial overlap\\\" test from Federal Ins. Co. v.\\n\\nRaytheon Co., 426 F.3d 491 (1st Cir. 2005), is also the test that\\n\\nwe should use to determine whether the Policy's requirement that\\n\\n\\\"Interrelated Wrongful Acts\\\" share a \\\"common nexus\\\" has been met.11\\n\\nThe appellants thus appear to argue only that, even if we assume\\n\\n\\n\\n 11 The appellants appear to do so, we note, even though\\nRaytheon was interpreting a different type of exclusionary\\nprovision. See id. at 495 (noting that parties in Raytheon were\\ncontesting the applicability of the policy's \\\"prior and pending\\nlitigation clause\\\").\\n\\n\\n - 28 -\\n\\fthat the 2012 Action contains many \\\"Wrongful Acts,\\\" there is\\n\\none -- misrepresentation concerning the ibuprofen trial -- that\\n\\ndoes not \\\"overlap\\\" with any of the \\\"Wrongful Acts\\\" that are\\n\\nreferenced in the 2011 Order and that, for this reason alone, the\\n\\n\\\"substantial overlap\\\" of the \\\"Wrongful Acts\\\" alleged that would\\n\\notherwise require the aggregation of the \\\"Claim[s]\\\" under Raytheon\\n\\nfails to exist.\\n\\n But, Raytheon forecloses the conclusion that, under the\\n\\n\\\"substantial overlap\\\" test, the existence of a single\\n\\nnon-overlapping \\\"Wrongful Act\\\" can suffice to preclude the\\n\\naggregation of distinct \\\"Claim[s]\\\" that the Policy's Interrelated\\n\\nWrongful Acts Provision would otherwise require. In Raytheon, we\\n\\ncompared a 2002 ERISA complaint with an earlier securities fraud\\n\\ncomplaint to determine if the two were \\\"substantially similar\\\" for\\n\\nthe purposes of a policy exclusion. Id. at 500. We recognized\\n\\nthat the ERISA complaint contained several allegations that\\n\\noccurred after the fraud case's completion. See id. We\\n\\nnevertheless held that \\\"substantial [factual] overlap\\\" existed\\n\\nbetween the two matters, because many of the factual allegations\\n\\nin the ERISA action were identical to those in the earlier fraud\\n\\nsuit. Id. Accordingly, we fail to see how the reference to the\\n\\nibuprofen trial misrepresentation in the 2012 Action in and of\\n\\nitself suffices to show that there is no \\\"substantial overlap\\\"\\n\\n\\n\\n\\n - 29 -\\n\\fbetween the \\\"Wrongful Acts\\\" referenced in 2011 Order and those\\n\\nreferenced in the \\\"Claim\\\" encompassing the 2012 Action.\\n\\n The appellants do cite to multiple cases that, they\\n\\ncontend, stand for the proposition -- seemingly in contravention\\n\\nof Raytheon -- that where a single allegation in a recent \\\"Claim\\\"\\n\\ndiffers from the \\\"Wrongful Acts\\\" contained in a pre-policy \\\"Claim,\\\"\\n\\nthe insured is entitled to coverage for the entire recent \\\"Claim,\\\"\\n\\nnotwithstanding a prior acts exclusion. But, even if we were to\\n\\ntreat the appellants' reliance on these cases as an implicit\\n\\nargument that some test other than the one set forth in Raytheon\\n\\ngoverns whether the relevant set of \\\"Wrongful Acts\\\" are\\n\\ninterrelated for purposes of this Policy's \\\"Interrelated Wrongful\\n\\nActs Provision,\\\" each of these cases is readily distinguishable\\n\\nfrom this one.\\n\\n Brown v. American Int'l Grp., Inc., 339 F. Supp. 2d 336\\n\\n(D. Mass. 2004), for example, appears to be interpreting Kentucky\\n\\nlaw and therefore hardly sheds light on how we should treat the\\n\\ndescribed scenario under Massachusetts law. See id. at 345 n.5.\\n\\nAllmerica, moreover, compared a pre-policy \\\"Claim\\\" containing a\\n\\nsingle allegation of wrongdoing with a \\\"Claim\\\" made during the\\n\\npolicy period that contained multiple allegations and determined\\n\\nthat, based on the record, the court could not conclude that any\\n\\noverlap existed between the two cases. See Allmerica, 871 N.E.2d\\n\\nat 430. Thus, Allmerica does not even appear to address the\\n\\n\\n - 30 -\\n\\fsituation where it is uncontested that some \\\"overlap\\\" in factual\\n\\nallegations does exist, notwithstanding some non-overlapping\\n\\nallegations.\\n\\n The appellants do also rely on Redland, which is a\\n\\nMassachusetts case applying Massachusetts law. There, the court\\n\\ncompared two pre-policy \\\"Claims\\\" with a \\\"Claim\\\" issued during the\\n\\npolicy period. The court determined that, despite the existence\\n\\nof some overlapping allegations, the \\\"bulk\\\" or \\\"heart\\\" of the more\\n\\nrecent allegations occurred well after the pre-policy \\\"Claims\\\"\\n\\nwere issued. 2008 WL 3342991 at *2. The court therefore\\n\\ndetermined that there was not enough overlap to trigger the\\n\\nexclusion. Id. But, the appellants do not explain why the one\\n\\npoint of non-overlap that they identify -- the ibuprofen\\n\\ntrial -- suffices to show that the \\\"bulk\\\" or \\\"heart\\\" of the\\n\\n\\\"Wrongful Acts\\\" contained in the 2012 Action do not \\\"substantially\\n\\noverlap\\\" with those contained in the 2011 Order. Indeed, it\\n\\nappears that the court in Redland is tacitly endorsing the\\n\\n\\\"substantial overlap\\\" test from Raytheon.\\n\\n Thus, at least given the arguments advanced to us on\\n\\nappeal, the appellants' argument that the \\\"Wrongful Acts\\\" listed\\n\\nin the 2012 Action are not \\\"interrelated\\\" with those contained in\\n\\nthe 2011 Order due to the diffuse nature of the allegations those\\n\\nfilings contain is not persuasive. Accordingly, we reject the\\n\\nappellants' contention that, due to the diffuse nature of the\\n\\n\\n - 31 -\\n\\fdescription of the acts in the SEC filings, the District Court\\n\\nerred in relying as it did on the Interrelated Wrongful Acts\\n\\nProvision in granting summary judgment to AXIS.\\n\\n V.\\n\\n We must consider one last argument, which concerns only\\n\\na portion of the District Court's grant of summary judgment to\\n\\nAXIS. The appellants contend that, even if we disagree with the\\n\\nappellants' arguments regarding AXIS's duty to defend the\\n\\n\\\"Claim[s]\\\" encompassing the 2012 subpoenas and 2012 Action\\n\\ngenerally, we must still hold that AXIS has a duty to defend the\\n\\n\\\"Claims\\\" against Masiz individually.\\n\\n The contention relies on language in the Policy covering\\n\\n\\\"Claims\\\" \\\"first made against such Insured . . . during the Policy\\n\\nPeriod.\\\" The argument is that this language indicates that the\\n\\nduty to defend is only triggered when a \\\"Claim\\\" \\\"is first made\\n\\nagainst [a] particular insured.\\\" The argument then proceeds that\\n\\neven though a \\\"Claim\\\" had been made against BioChemics at the time\\n\\nthe 2011 Order was issued, no \\\"Claim\\\" had been made against Masiz\\n\\nas of that time. The contention is that the earliest point in\\n\\nwhich a \\\"Claim\\\" had been made against Masiz was the moment that he\\n\\nwas served by the SEC with one of the 2012 subpoenas, which is an\\n\\nevent that occurred during the policy period.\\n\\n In so arguing, the appellants rely on the analysis in\\n\\nTranSched Sys. Ltd. v. Fed. Ins. Co., 958 F. Supp. 2d 331 (D.R.I.\\n\\n\\n - 32 -\\n\\f2013). But, the dispute there centered on whether the phrase \\\"such\\n\\nInsured\\\" applied to a party who was neither an \\\"insured\\\" nor\\n\\nseeking coverage. Id. at 336-37. Here, by contrast, the dispute\\n\\nconcerns whether the 2011 Order and pre-Policy subpoenas were clear\\n\\nenough to inform Masiz, who is an insured seeking coverage, that\\n\\nhe was a target of the SEC's investigation commenced by the 2011\\n\\nOrder. Given that the Court's analysis in TranSched does not speak\\n\\nat all to that type of question, we fail to see how that case is\\n\\ninstructive here.\\n\\n To the extent that this argument rests on the fact that\\n\\nthe 2011 Order did not \\\"allege[]\\\" \\\"Wrongful Acts\\\" performed by\\n\\nMasiz due to the qualified nature of the only misconduct therein\\n\\ndescribed, we have already explained why that contention is\\n\\nuntenable here. Qualified though these references to misconduct\\n\\nwere, they did suffice to \\\"allege[]\\\" \\\"Wrongful Acts.\\\"\\n\\n It is possible that the appellants mean to argue that\\n\\nthe 2011 Order does not constitute a \\\"Claim\\\" made against Masiz\\n\\nbecause, although he was served with certain of the 2012 subpoenas\\n\\nand named as co-defendant in the 2012 Action, he was not similarly\\n\\nserved with or named in the 2011 Order. But, here too, we are\\n\\nunpersuaded.\\n\\n The appellants do invoke, seemingly in support of this\\n\\ncontention, a number of precedents that concern private suits in\\n\\nwhich the complaints named particular defendants, the most\\n\\n\\n - 33 -\\n\\fdirectly analogous of which is Medical Mut. Ins. Co. of Maine v.\\n\\nIndian Harbor Ins. Co., 583 F.3d 57 (1st Cir. 2009). There, we\\n\\nheld that a suit against an insured company that alleged wrongdoing\\n\\nby some of its officers did not constitute a claim against those\\n\\nofficers. Id. at 63. But, the relevant document here is not a\\n\\ncomplaint in a private suit naming a particular defendant. It is\\n\\nan SEC Order authorizing a private investigation by that agency\\n\\ninto alleged wrongdoing by a company and persons associated with\\n\\nit. The appellants identify no precedent that supports the\\n\\nproposition that a filing of that type must be formally\\n\\nserved -- as a suit or subpoena must be -- on the insured for it\\n\\nto constitute a \\\"Claim\\\" against him.\\n\\n Moreover, the Policy expressly identifies an\\n\\n\\\"investigative order\\\" as a component of a \\\"D&O Claim.\\\" The 2011\\n\\nOrder opens with a full paragraph that, in the course of describing\\n\\nMasiz's past securities violations and the terms of his probation,\\n\\nidentifies him to be the \\\"sole officer and director of BioChemics.\\\"\\n\\nThe document then proceeds to describe misconduct that, for the\\n\\nreasons that we have already given, see supra Section IV.B.1,\\n\\nsuffices to \\\"allege[]\\\" \\\"Wrongful Acts\\\" within the meaning of the\\n\\nPolicy and that attribute that possible misconduct to a range of\\n\\npersons that include not only the company itself but its\\n\\n\\\"officers.\\\" Finally, the Order goes on to state that the SEC\\n\\n\\\"ORDERS . . . that a private investigation be made to determine\\n\\n\\n - 34 -\\n\\fwhether any persons or entities have engaged in, or are about to\\n\\nengage in, any of the reported acts or practices or any acts or\\n\\npractices of similar purport or object.\\\" Accordingly, the \\\"plain\\n\\nlanguage\\\" of Masiz's Policy shows that the 2011 Order -- in\\n\\nannouncing an investigation of BioChemics's officers and expressly\\n\\nnaming Masiz as the only one -- is properly deemed a \\\"Claim\\\"\\n\\nagainst not only BioChemics but also Masiz himself. See Nat. Stock\\n\\nExch., 2007 WL 1030293, at *4-5 (emphasis added).\\n\\n VI.\\n\\n For the foregoing reasons we affirm the District Court's\\n\\ndecisions granting summary judgment in favor of AXIS and denying\\n\\nthe appellants' Motion for Partial Summary Judgment. The parties\\n\\nshall bear their own costs.\\n\\n\\n\\n\\n - 35 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1973,"cells":{"id":{"kind":"number","value":4624402,"string":"4,624,402"},"name":{"kind":"string","value":"COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC., Plaintiff, Appellant, v. Carmen Yulín Cruz SOTO, in Her Official and Personal Capacities; Municipality of San Juan, Defendants, Appellees, Spanish Broadcasting System of Puerto Rico, Inc.; Alfredo Carrasquillo, Defendants."},"name_abbreviation":{"kind":"string","value":"Comité Fiestas De La Calle San Sebastián, Inc. v. Soto"},"decision_date":{"kind":"string","value":"2019-05-29"},"docket_number":{"kind":"string","value":"17-1723P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Thompson, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"KAYATTA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1723\\n\\n COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\nCARMEN YULÍN CRUZ SOTO, in her official and personal capacities;\\n MUNICIPALITY OF SAN JUAN,\\n\\n Defendants, Appellees,\\n\\n SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC.; ALFREDO\\n CARRASQUILLO,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Thompson and Kayatta, Circuit Judges.\\n\\n\\n Jane A. Becker Whitaker, with whom Law Offices of Jane Becker\\nWhitaker was on brief, for appellant.\\n Héctor Benítez Arraiza and Patricia Rivera MacMurray, with\\nwhom Quiñones, Arobona & Candelario, PSC, Giselle M. Martínez-\\nVelázquez, and Raul S. Mariani-Franco were on brief, for appellees.\\n\\fMay 29, 2019\\n\\f KAYATTA, Circuit Judge. The Comité Fiestas de la Calle\\n\\nSan Sebastián, Inc. (\\\"the Comité\\\") is a non-profit corporation\\n\\nthat promotes and helps run the Fiestas de la Calle San Sebastián\\n\\nfestival in San Juan, Puerto Rico. This lawsuit arises from the\\n\\nComité's unhappiness with its diminished assigned role as vendor\\n\\nand presenter at the 2015 Fiestas de la Calle San Sebastián\\n\\ncelebration. After discovery, the district court granted summary\\n\\njudgment for San Juan Mayor Carmen Yulín Cruz and the municipality\\n\\nof San Juan on the Comité's trademark-infringement and First\\n\\nAmendment retaliation, political discrimination, and religious\\n\\ndiscrimination claims. We now affirm.\\n\\n I.\\n\\n We first survey the pertinent facts. The Fiestas de la\\n\\nCalle San Sebastián is a four-day festival held in Old San Juan.\\n\\nThe Comité takes part in organizing and running the festival in\\n\\nconjunction with the municipality of San Juan and likens its role\\n\\nto that of the New York Road Runners in planning and orchestrating\\n\\nthe New York City Marathon. Specifically, it \\\"promote[s]\\n\\ntraditional Puerto Rican music and culture, particularly the\\n\\ncelebration of Saint [Sebastián]\\\" at the festival. The Comité\\n\\npurports to be the successor organization of an older group, the\\n\\nVecinos de la Calle San Sebastián, which revitalized the festival.\\n\\n In 2014, the Comité -- which considers itself an\\n\\napolitical entity -- publicly criticized Mayor Cruz for\\n\\n\\n - 3 -\\n\\fdeemphasizing the religious and traditional aspects of the\\n\\ncelebration and for \\\"turning historic Old San Juan into a big bar\\n\\nwith contests to see who could drink the most.\\\" The Comité alleges\\n\\nthat the municipality and Mayor Cruz, who is a member of the\\n\\nPopular Democratic Party, retaliated against the Comité in various\\n\\nways in response to this criticism. Specifically, the Comité\\n\\nclaims that the municipality awarded it a less advantageous vendor\\n\\ncontract than in previous years; imposed upon the Comité onerous\\n\\ncertification requirements that it did not enforce against two\\n\\nother vendors with connections to the Popular Democratic Party;\\n\\nand granted a coveted entertainment timeslot, during which the\\n\\nComité had previously presented traditional Puerto Rican music, to\\n\\na donor of the Popular Democratic Party.\\n\\n The Comité brought First Amendment political\\n\\ndiscrimination, retaliation, and religious discrimination claims\\n\\nas well as counts for trademark infringement, alleging that the\\n\\nComité owns the \\\"Fiestas de la Calle San Sebastián\\\" mark. After\\n\\ndiscovery, the district court granted summary judgment for Cruz\\n\\nand the municipality on all counts. Comité Fiestas de la Calle\\n\\nSan Sebastián, Inc. v. Cruz, 207 F. Supp. 3d 129, 148 (D.P.R.\\n\\n2016). The Comité then filed a Rule 59(e) motion for\\n\\nreconsideration. The Comité's accompanying memorandum reasserted\\n\\nits position that the record precluded summary judgment on the\\n\\nComité's political discrimination, trademark, and libel claims.\\n\\n\\n - 4 -\\n\\fIn support of its trademark-infringement claims, the Comité also\\n\\nbrought new evidence from the U.S. Patent and Trademark Office\\n\\n(PTO) in the form of a preliminary authorization to publish the\\n\\n\\\"Fiestas de la Calle San Sebastián\\\" mark. Comité Fiestas de la\\n\\nCalle San Sebastián, Inc. v. Cruz, No. 14-1929 (FAB), 2017 WL\\n\\n6888519, at *1 (D.P.R. May 19, 2017). The district court denied\\n\\nthe motion, id. at *2, and this appeal followed.\\n\\n II.\\n\\n A.\\n\\n We first address our jurisdiction to consider the\\n\\nComité's timely appeal. Federal Rule of Appellate\\n\\nProcedure 3(c)(1)(B) requires that a notice of appeal \\\"designate\\n\\nthe judgment, order, or part thereof being appealed.\\\" While\\n\\n\\\"[c]ourts will liberally construe the requirements of Rule 3,\\\" its\\n\\nstrictures \\\"are jurisdictional in nature, and their satisfaction\\n\\nis a prerequisite to appellate review.\\\" Smith v. Barry, 502 U.S.\\n\\n244, 248 (1992).\\n\\n The Comité's notice of appeal references only the\\n\\ndistrict court's denial of its Rule 59(e) motion for\\n\\nreconsideration. The Comité's opening brief on appeal, however,\\n\\nsolely challenges portions of the underlying summary judgment\\n\\norder. The government defendants argue that this misalignment\\n\\nstrips us of our ability to reach the merits of the district\\n\\ncourt's summary judgment order.\\n\\n\\n - 5 -\\n\\f Our circuit's Rule 3(c)(1)(B) precedents certainly\\n\\naccommodate a robust application of waiver in circumstances such\\n\\nas this one. We have several times ruled that we do not have\\n\\njurisdiction to review an underlying judgment when the notice of\\n\\nappeal designates only the district court's denial of a motion for\\n\\nreconsideration. See Zukowski v. St. Lukes Home Care Program, 326\\n\\nF.3d 278, 282 (1st Cir. 2003); Mariani-Girón v. Acevedo-Ruiz, 945\\n\\nF.2d 1, 3 (1st Cir. 1991); see also Wright & Miller, Fed. Practice\\n\\n& Procedure § 3949.4 (4th ed. 2018). However, our case law also\\n\\nhas some looseness in its joints. We have recognized, for\\n\\ninstance, that \\\"courts have some latitude to consider other grounds\\n\\noriginally urged against the underlying dismissal, especially\\n\\nwhere the issues on original dismissal and the reconsideration\\n\\norder overlap or are intertwined.\\\" Díaz Aviation Corp. v. Airport\\n\\nAviation Servs., Inc., 716 F.3d 256, 262 (1st Cir. 2013) (quoting\\n\\nMcKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213 (1st Cir.\\n\\n2012)); see generally Wright & Miller, supra, § 3949.4 (\\\"[C]ourts\\n\\nhave often been willing to rescue such appellants by inferring\\n\\nthat they meant to appeal from the underlying judgment . . . .\\\").\\n\\n Accordingly, in Díaz Aviation, we considered the merits\\n\\nof a district court's underlying judgment when the notice of appeal\\n\\nonly referenced the court's denial of a motion for reconsideration\\n\\nbecause the \\\"motion for reconsideration largely rehashed the\\n\\narguments . . . made in opposition to the original judgment.\\\" 716\\n\\n\\n - 6 -\\n\\fF.3d at 262. Under similar circumstances, in Town of Norwood v.\\n\\nNew England Power Company, we addressed a challenge to the district\\n\\ncourt's motion-to-dismiss order because the appellant's motion for\\n\\nreconsideration \\\"cover[ed] . . . more or less the same points . . .\\n\\nearlier made to the district court\\\" on the motion to dismiss. 202\\n\\nF.3d 408, 415 (1st Cir. 2000).\\n\\n Here, as in Díaz Aviation and Town of Norwood, the\\n\\nComité's Rule 59(e) motion (with the sole exception of the\\n\\nreference to new evidence on the trademark claim) raised \\\"mere[]\\n\\nelaborations of claims already presented.\\\" Comité Fiestas de la\\n\\nCalle San Sebastián, Inc., 2017 WL 6888519, at *1 n.2.\\n\\nSpecifically, the Comité largely rehashed the same arguments as to\\n\\nits political discrimination and trademark claims that it raised\\n\\nin its opposition to summary judgment and that it now seeks to\\n\\nraise before us on appeal. And, as far as these claims are\\n\\nconcerned, a challenge to the denial of its motion for\\n\\nreconsideration and a challenge to the entry of summary judgment\\n\\nfor the government defendants turn on the same issue of law --\\n\\nthat is, whether a de novo review of the record supported the\\n\\ndistrict court's conclusions that there is no genuine issue of\\n\\nmaterial fact and the government defendants are entitled to\\n\\njudgment as a matter of law. See, e.g., Best Auto Repair Shop,\\n\\nInc. v. Universal Insur. Grp., 875 F.3d 733, 737 (1st Cir. 2017)\\n\\n(\\\"We 'normally review a district court's decision to grant or deny\\n\\n\\n - 7 -\\n\\fa motion for reconsideration for abuse of discretion.' But here,\\n\\nas 'the parties' arguments [are] directed to the underlying\\n\\nsubstantive issue (the propriety vel non of summary judgment)\\n\\nrather than the procedural issue (the desirability vel non of\\n\\nreconsideration),' we review de novo the summary judgment ruling.\\\"\\n\\n(citation omitted) (quoting Santiago v. Puerto Rico, 655 F.3d 61,\\n\\n67 (1st Cir. 2011))), cert. denied, 139 S. Ct. 119 (2018).\\n\\n Additionally -- and importantly -- deeming the notice of\\n\\nappeal sufficient to preserve for appellate review the overlapping\\n\\nissues of law raised by the summary judgment ruling and the\\n\\nRule 59(e) ruling will cause no unfair prejudice to the appellees\\n\\nin this case or to the administration of the appeal. The appellees\\n\\nwere timely apprised of the Comité's appeal. They point to no\\n\\nreliance of any type on the substance of the notice. And both\\n\\nparties have fully briefed the merits in ordinary course. As the\\n\\nSupreme Court has observed, \\\"[i]t is too late in the day and\\n\\nentirely contrary to the spirit of the Federal Rules of Civil\\n\\nProcedure\\\" to favor dispositions based on \\\"mere technicalities.\\\"\\n\\nFoman v. Davis, 371 U.S. 178, 181 (1962); see also Chamorro v.\\n\\nPuerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) (\\\"[B]oth\\n\\nsides have fully briefed the merits, and undertaking appellate\\n\\nreview of the original order of dismissal would not unfairly\\n\\nprejudice [appellee].\\\"). Moreover, had the notice more wisely\\n\\nappealed the \\\"final judgment,\\\" the defendants would have learned\\n\\n\\n - 8 -\\n\\fexactly which orders the Comité wished to challenge in its appeal\\n\\nno sooner than they did here. See Denault v. Ahern, 857 F.3d 76,\\n\\n81–82 (1st Cir. 2017) (explaining that an appeal of the final\\n\\njudgment also appeals all interlocutory orders).\\n\\n That the Comité's Rule 59(e) motion also included new\\n\\nargumentation as to its trademark claim should not strip us of our\\n\\njurisdiction over these other, preserved arguments. In Biltcliffe\\n\\nv. CitiMortgage, Inc., we found that we lacked jurisdiction over\\n\\na plaintiff's challenge to the district court's entry of summary\\n\\njudgment when his notice of appeal only referenced his motion for\\n\\nreconsideration and his memorandum in support of reconsideration\\n\\nadvanced additional arguments not raised at summary judgment. 772\\n\\nF.3d 925, 929–30 (1st Cir. 2014). Importantly, we did so in part\\n\\nbecause we construed the plaintiff's opening appellate brief as\\n\\nonly advancing arguments directed at the district court's denial\\n\\nof the motion for reconsideration, see id. (\\\"To the extent\\n\\n[Biltcliffe] revisits certain substantive bases for the district\\n\\ncourt's summary judgment order, he argues only that the court made\\n\\nmanifest errors of law and, as a result, abused its discretion\\n\\n. . . .\\\"), vitiating any claim that the defendant had proper notice\\n\\nof the plaintiff's intent to appeal the entry of summary judgment.\\n\\nHere, by contrast, the plaintiff's opening appellate brief plainly\\n\\nand exclusively sought direct review of the summary judgment ruling\\n\\nunder Rule 56. Accordingly, we hold that the Comité's appeal\\n\\n\\n - 9 -\\n\\ffairly encompasses both the Rule 59(e) ruling and those parts of\\n\\nthe district court's summary judgment order that are addressed in\\n\\nthe Comité's memorandum in support of its Rule 59(e) motion (i.e.,\\n\\nthe Comité's political discrimination and trademark-infringement\\n\\nclaims).\\n\\n Despite our willingness to broadly construe the notice\\n\\nof appeal, the Comité has nonetheless failed to preserve for our\\n\\nreview every claim that it includes in its appellate briefs. The\\n\\nComité's First Amendment retaliation claim was not raised at all\\n\\nin its motion for reconsideration, so our dispensation for\\n\\noverlapping arguments cannot save that claim. And while the\\n\\nComité's appeal of the Rule 59(e) motion plainly sufficed to\\n\\npreserve the Comité's argument that new evidence from the PTO\\n\\nsupported its trademark claim, the Comité chose not to raise that\\n\\nargument in its main brief on appeal. Hence, this claim is waived.\\n\\nSee Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29\\n\\n(1st Cir. 2015).\\n\\n B.\\n\\n We finally turn to the merits of the preserved rulings.\\n\\nThe Comité's political discrimination claim rests on the\\n\\nallegation that the government defendants gave more favorable\\n\\norganizational roles and contracts to two other event organizers\\n\\ndue to their political support for Mayor Cruz and the Popular\\n\\nDemocratic Party. The Comité also alleges that the government\\n\\n\\n - 10 -\\n\\fdefendants subjected it to a more rigorous permitting process than\\n\\nit did these political supporters. The district court nipped this\\n\\nclaim in the bud on summary judgment because the Comité pointed to\\n\\nno evidence that the government defendants knew the political\\n\\naffiliation of the Comité or its members. Comité Fiestas de la\\n\\nCalle San Sebastián, Inc., 207 F. Supp. 3d at 144. The court's\\n\\nlegal premise aptly captures the law: A plaintiff bringing a claim\\n\\nthat a government entity discriminated against it based on\\n\\npolitical affiliation need generally prove, as a starter, that the\\n\\ndefendant was aware of the plaintiff's relevant affiliation (or\\n\\nlack thereof). See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.\\n\\n2011); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.\\n\\n2010). So, the only question for us is whether the record lacks\\n\\nsuch evidence.\\n\\n The Comité points to four pages of the record that it\\n\\nclaims undermine the district court's assessment of the summary-\\n\\njudgment record. But as best as we can tell from those pages,\\n\\nthey show only that, during discovery, it became clear that the\\n\\nComité itself is apolitical and that the political activities of\\n\\nits principal members remain unknown. There is no cognizable\\n\\nevidence that the pertinent city officials knew these facts when\\n\\nthey made the challenged decisions.\\n\\n In its brief on appeal, the Comité asserts that Mayor\\n\\nCruz's \\\"preferred contractors all donated to Mayor Cruz's\\n\\n\\n - 11 -\\n\\fcampaign,\\\" evidencing the government defendants' hostility toward\\n\\nthe Comité for \\\"fail[ing] to show public support for Mayor Cruz.\\\"\\n\\nCertainly, a plaintiff can support a prima facie case of political\\n\\ndiscrimination by showing that its \\\"decision not to associate with\\n\\na political party or faction\\\" was a substantial or motivating\\n\\nfactor in an employer's decision to take an adverse employment\\n\\naction against the plaintiff. See Barry, 661 F.3d at 703–04. On\\n\\nappeal, however, the Comité points to no evidence that those\\n\\ndeciding to favor the preferred contractors knew that these\\n\\ncontractors supported the Mayor or her political party. Rather,\\n\\nthe Comité points only to evidence produced in discovery\\n\\ndemonstrating that the contractors admitted to voting for or\\n\\nsupporting the Popular Democratic Party at some unknown time in\\n\\nthe past and that one acknowledged donating to the Mayor after the\\n\\ndecisions at issue here had already been made. On such a record,\\n\\nit takes too much speculation to infer that those deciding to favor\\n\\nthe preferred contractors considered them political allies. We\\n\\ntherefore cannot conclude that the district court erred in\\n\\ndismissing the Comité's political discrimination claim on such a\\n\\nrecord. See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.\\n\\n1994) (\\\"Without more, a nonmoving plaintiff-employee's unsupported\\n\\nand speculative assertions regarding political discrimination will\\n\\nnot be enough to survive summary judgment.\\\").\\n\\n\\n\\n\\n - 12 -\\n\\f As to the Comité's trademark claim, its opening brief\\n\\npoints to nothing in the record establishing that the \\\"Fiestas de\\n\\nla Calles San Sebastián\\\" term has gained the secondary meaning\\n\\nrequired to obtain trademark protection. See Bos. Beer Co., Ltd.\\n\\nv. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir. 1993)\\n\\n(explaining that descriptive terms are entitled to trademark\\n\\nprotection only upon attaining secondary meaning). And even were\\n\\nwe to consider the affidavits the Comité relies upon for this point\\n\\nin its reply brief, none even hints that the public associates\\n\\nthis term with a single commercial source. Bos. Duck Tours, LP v.\\n\\nSuper Duck Tours, LLC, 531 F.3d 1, 13 (1st Cir. 2008) (observing\\n\\nthat establishing secondary meaning requires proof that the\\n\\n\\\"public associates the term or phrase not only with a specific\\n\\nfeature or quality, but also with a single commercial source\\\").\\n\\n Thus, because the Comité has failed to show that any\\n\\n\\\"trial[-]worthy issue persists\\\" as to its political discrimination\\n\\nand trademark-infringement claims, Iverson v. City of Bos., 452\\n\\nF.3d 94, 98 (1st Cir. 2006), the district court did not err in\\n\\nentering summary judgment for the government defendants on those\\n\\nclaims.\\n\\n III.\\n\\n For the foregoing reasons, we affirm the district\\n\\ncourt's entry of summary judgment for the government defendants\\n\\n\\n\\n\\n - 13 -\\n\\fand the district court's denial of the Comité's motion for\\n\\nreconsideration.\\n\\n\\n\\n\\n - 14 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4401655/\", \"author_raw\": \"KAYATTA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624402/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC., Plaintiff, Appellant, v. Carmen Yulín Cruz SOTO, in Her Official and Personal Capacities; Municipality of San Juan, Defendants, Appellees, Spanish Broadcasting System of Puerto Rico, Inc.; Alfredo Carrasquillo, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1723\n\n COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,\n\n Plaintiff, Appellant,\n\n v.\n\nCARMEN YULÍN CRUZ SOTO, in her official and personal capacities;\n MUNICIPALITY OF SAN JUAN,\n\n Defendants, Appellees,\n\n SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC.; ALFREDO\n CARRASQUILLO,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Francisco A. Besosa, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Thompson and Kayatta, Circuit Judges.\n\n\n Jane A. Becker Whitaker, with whom Law Offices of Jane Becker\nWhitaker was on brief, for appellant.\n Héctor Benítez Arraiza and Patricia Rivera MacMurray, with\nwhom Quiñones, Arobona & Candelario, PSC, Giselle M. Martínez-\nVelázquez, and Raul S. Mariani-Franco were on brief, for appellees.\n\fMay 29, 2019\n\f KAYATTA, Circuit Judge. The Comité Fiestas de la Calle\n\nSan Sebastián, Inc. (\"the Comité\") is a non-profit corporation\n\nthat promotes and helps run the Fiestas de la Calle San Sebastián\n\nfestival in San Juan, Puerto Rico. This lawsuit arises from the\n\nComité's unhappiness with its diminished assigned role as vendor\n\nand presenter at the 2015 Fiestas de la Calle San Sebastián\n\ncelebration. After discovery, the district court granted summary\n\njudgment for San Juan Mayor Carmen Yulín Cruz and the municipality\n\nof San Juan on the Comité's trademark-infringement and First\n\nAmendment retaliation, political discrimination, and religious\n\ndiscrimination claims. We now affirm.\n\n I.\n\n We first survey the pertinent facts. The Fiestas de la\n\nCalle San Sebastián is a four-day festival held in Old San Juan.\n\nThe Comité takes part in organizing and running the festival in\n\nconjunction with the municipality of San Juan and likens its role\n\nto that of the New York Road Runners in planning and orchestrating\n\nthe New York City Marathon. Specifically, it \"promote[s]\n\ntraditional Puerto Rican music and culture, particularly the\n\ncelebration of Saint [Sebastián]\" at the festival. The Comité\n\npurports to be the successor organization of an older group, the\n\nVecinos de la Calle San Sebastián, which revitalized the festival.\n\n In 2014, the Comité -- which considers itself an\n\napolitical entity -- publicly criticized Mayor Cruz for\n\n\n - 3 -\n\fdeemphasizing the religious and traditional aspects of the\n\ncelebration and for \"turning historic Old San Juan into a big bar\n\nwith contests to see who could drink the most.\" The Comité alleges\n\nthat the municipality and Mayor Cruz, who is a member of the\n\nPopular Democratic Party, retaliated against the Comité in various\n\nways in response to this criticism. Specifically, the Comité\n\nclaims that the municipality awarded it a less advantageous vendor\n\ncontract than in previous years; imposed upon the Comité onerous\n\ncertification requirements that it did not enforce against two\n\nother vendors with connections to the Popular Democratic Party;\n\nand granted a coveted entertainment timeslot, during which the\n\nComité had previously presented traditional Puerto Rican music, to\n\na donor of the Popular Democratic Party.\n\n The Comité brought First Amendment political\n\ndiscrimination, retaliation, and religious discrimination claims\n\nas well as counts for trademark infringement, alleging that the\n\nComité owns the \"Fiestas de la Calle San Sebastián\" mark. After\n\ndiscovery, the district court granted summary judgment for Cruz\n\nand the municipality on all counts. Comité Fiestas de la Calle\n\nSan Sebastián, Inc. v. Cruz, 207 F. Supp. 3d 129, 148 (D.P.R.\n\n2016). The Comité then filed a Rule 59(e) motion for\n\nreconsideration. The Comité's accompanying memorandum reasserted\n\nits position that the record precluded summary judgment on the\n\nComité's political discrimination, trademark, and libel claims.\n\n\n - 4 -\n\fIn support of its trademark-infringement claims, the Comité also\n\nbrought new evidence from the U.S. Patent and Trademark Office\n\n(PTO) in the form of a preliminary authorization to publish the\n\n\"Fiestas de la Calle San Sebastián\" mark. Comité Fiestas de la\n\nCalle San Sebastián, Inc. v. Cruz, No. 14-1929 (FAB), 2017 WL\n\n6888519, at *1 (D.P.R. May 19, 2017). The district court denied\n\nthe motion, id. at *2, and this appeal followed.\n\n II.\n\n A.\n\n We first address our jurisdiction to consider the\n\nComité's timely appeal. Federal Rule of Appellate\n\nProcedure 3(c)(1)(B) requires that a notice of appeal \"designate\n\nthe judgment, order, or part thereof being appealed.\" While\n\n\"[c]ourts will liberally construe the requirements of Rule 3,\" its\n\nstrictures \"are jurisdictional in nature, and their satisfaction\n\nis a prerequisite to appellate review.\" Smith v. Barry, 502 U.S.\n\n244, 248 (1992).\n\n The Comité's notice of appeal references only the\n\ndistrict court's denial of its Rule 59(e) motion for\n\nreconsideration. The Comité's opening brief on appeal, however,\n\nsolely challenges portions of the underlying summary judgment\n\norder. The government defendants argue that this misalignment\n\nstrips us of our ability to reach the merits of the district\n\ncourt's summary judgment order.\n\n\n - 5 -\n\f Our circuit's Rule 3(c)(1)(B) precedents certainly\n\naccommodate a robust application of waiver in circumstances such\n\nas this one. We have several times ruled that we do not have\n\njurisdiction to review an underlying judgment when the notice of\n\nappeal designates only the district court's denial of a motion for\n\nreconsideration. See Zukowski v. St. Lukes Home Care Program, 326\n\nF.3d 278, 282 (1st Cir. 2003); Mariani-Girón v. Acevedo-Ruiz, 945\n\nF.2d 1, 3 (1st Cir. 1991); see also Wright & Miller, Fed. Practice\n\n& Procedure § 3949.4 (4th ed. 2018). However, our case law also\n\nhas some looseness in its joints. We have recognized, for\n\ninstance, that \"courts have some latitude to consider other grounds\n\noriginally urged against the underlying dismissal, especially\n\nwhere the issues on original dismissal and the reconsideration\n\norder overlap or are intertwined.\" Díaz Aviation Corp. v. Airport\n\nAviation Servs., Inc., 716 F.3d 256, 262 (1st Cir. 2013) (quoting\n\nMcKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213 (1st Cir.\n\n2012)); see generally Wright & Miller, supra, § 3949.4 (\"[C]ourts\n\nhave often been willing to rescue such appellants by inferring\n\nthat they meant to appeal from the underlying judgment . . . .\").\n\n Accordingly, in Díaz Aviation, we considered the merits\n\nof a district court's underlying judgment when the notice of appeal\n\nonly referenced the court's denial of a motion for reconsideration\n\nbecause the \"motion for reconsideration largely rehashed the\n\narguments . . . made in opposition to the original judgment.\" 716\n\n\n - 6 -\n\fF.3d at 262. Under similar circumstances, in Town of Norwood v.\n\nNew England Power Company, we addressed a challenge to the district\n\ncourt's motion-to-dismiss order because the appellant's motion for\n\nreconsideration \"cover[ed] . . . more or less the same points . . .\n\nearlier made to the district court\" on the motion to dismiss. 202\n\nF.3d 408, 415 (1st Cir. 2000).\n\n Here, as in Díaz Aviation and Town of Norwood, the\n\nComité's Rule 59(e) motion (with the sole exception of the\n\nreference to new evidence on the trademark claim) raised \"mere[]\n\nelaborations of claims already presented.\" Comité Fiestas de la\n\nCalle San Sebastián, Inc., 2017 WL 6888519, at *1 n.2.\n\nSpecifically, the Comité largely rehashed the same arguments as to\n\nits political discrimination and trademark claims that it raised\n\nin its opposition to summary judgment and that it now seeks to\n\nraise before us on appeal. And, as far as these claims are\n\nconcerned, a challenge to the denial of its motion for\n\nreconsideration and a challenge to the entry of summary judgment\n\nfor the government defendants turn on the same issue of law --\n\nthat is, whether a de novo review of the record supported the\n\ndistrict court's conclusions that there is no genuine issue of\n\nmaterial fact and the government defendants are entitled to\n\njudgment as a matter of law. See, e.g., Best Auto Repair Shop,\n\nInc. v. Universal Insur. Grp., 875 F.3d 733, 737 (1st Cir. 2017)\n\n(\"We 'normally review a district court's decision to grant or deny\n\n\n - 7 -\n\fa motion for reconsideration for abuse of discretion.' But here,\n\nas 'the parties' arguments [are] directed to the underlying\n\nsubstantive issue (the propriety vel non of summary judgment)\n\nrather than the procedural issue (the desirability vel non of\n\nreconsideration),' we review de novo the summary judgment ruling.\"\n\n(citation omitted) (quoting Santiago v. Puerto Rico, 655 F.3d 61,\n\n67 (1st Cir. 2011))), cert. denied, 139 S. Ct. 119 (2018).\n\n Additionally -- and importantly -- deeming the notice of\n\nappeal sufficient to preserve for appellate review the overlapping\n\nissues of law raised by the summary judgment ruling and the\n\nRule 59(e) ruling will cause no unfair prejudice to the appellees\n\nin this case or to the administration of the appeal. The appellees\n\nwere timely apprised of the Comité's appeal. They point to no\n\nreliance of any type on the substance of the notice. And both\n\nparties have fully briefed the merits in ordinary course. As the\n\nSupreme Court has observed, \"[i]t is too late in the day and\n\nentirely contrary to the spirit of the Federal Rules of Civil\n\nProcedure\" to favor dispositions based on \"mere technicalities.\"\n\nFoman v. Davis, 371 U.S. 178, 181 (1962); see also Chamorro v.\n\nPuerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) (\"[B]oth\n\nsides have fully briefed the merits, and undertaking appellate\n\nreview of the original order of dismissal would not unfairly\n\nprejudice [appellee].\"). Moreover, had the notice more wisely\n\nappealed the \"final judgment,\" the defendants would have learned\n\n\n - 8 -\n\fexactly which orders the Comité wished to challenge in its appeal\n\nno sooner than they did here. See Denault v. Ahern, 857 F.3d 76,\n\n81–82 (1st Cir. 2017) (explaining that an appeal of the final\n\njudgment also appeals all interlocutory orders).\n\n That the Comité's Rule 59(e) motion also included new\n\nargumentation as to its trademark claim should not strip us of our\n\njurisdiction over these other, preserved arguments. In Biltcliffe\n\nv. CitiMortgage, Inc., we found that we lacked jurisdiction over\n\na plaintiff's challenge to the district court's entry of summary\n\njudgment when his notice of appeal only referenced his motion for\n\nreconsideration and his memorandum in support of reconsideration\n\nadvanced additional arguments not raised at summary judgment. 772\n\nF.3d 925, 929–30 (1st Cir. 2014). Importantly, we did so in part\n\nbecause we construed the plaintiff's opening appellate brief as\n\nonly advancing arguments directed at the district court's denial\n\nof the motion for reconsideration, see id. (\"To the extent\n\n[Biltcliffe] revisits certain substantive bases for the district\n\ncourt's summary judgment order, he argues only that the court made\n\nmanifest errors of law and, as a result, abused its discretion\n\n. . . .\"), vitiating any claim that the defendant had proper notice\n\nof the plaintiff's intent to appeal the entry of summary judgment.\n\nHere, by contrast, the plaintiff's opening appellate brief plainly\n\nand exclusively sought direct review of the summary judgment ruling\n\nunder Rule 56. Accordingly, we hold that the Comité's appeal\n\n\n - 9 -\n\ffairly encompasses both the Rule 59(e) ruling and those parts of\n\nthe district court's summary judgment order that are addressed in\n\nthe Comité's memorandum in support of its Rule 59(e) motion (i.e.,\n\nthe Comité's political discrimination and trademark-infringement\n\nclaims).\n\n Despite our willingness to broadly construe the notice\n\nof appeal, the Comité has nonetheless failed to preserve for our\n\nreview every claim that it includes in its appellate briefs. The\n\nComité's First Amendment retaliation claim was not raised at all\n\nin its motion for reconsideration, so our dispensation for\n\noverlapping arguments cannot save that claim. And while the\n\nComité's appeal of the Rule 59(e) motion plainly sufficed to\n\npreserve the Comité's argument that new evidence from the PTO\n\nsupported its trademark claim, the Comité chose not to raise that\n\nargument in its main brief on appeal. Hence, this claim is waived.\n\nSee Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29\n\n(1st Cir. 2015).\n\n B.\n\n We finally turn to the merits of the preserved rulings.\n\nThe Comité's political discrimination claim rests on the\n\nallegation that the government defendants gave more favorable\n\norganizational roles and contracts to two other event organizers\n\ndue to their political support for Mayor Cruz and the Popular\n\nDemocratic Party. The Comité also alleges that the government\n\n\n - 10 -\n\fdefendants subjected it to a more rigorous permitting process than\n\nit did these political supporters. The district court nipped this\n\nclaim in the bud on summary judgment because the Comité pointed to\n\nno evidence that the government defendants knew the political\n\naffiliation of the Comité or its members. Comité Fiestas de la\n\nCalle San Sebastián, Inc., 207 F. Supp. 3d at 144. The court's\n\nlegal premise aptly captures the law: A plaintiff bringing a claim\n\nthat a government entity discriminated against it based on\n\npolitical affiliation need generally prove, as a starter, that the\n\ndefendant was aware of the plaintiff's relevant affiliation (or\n\nlack thereof). See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.\n\n2011); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.\n\n2010). So, the only question for us is whether the record lacks\n\nsuch evidence.\n\n The Comité points to four pages of the record that it\n\nclaims undermine the district court's assessment of the summary-\n\njudgment record. But as best as we can tell from those pages,\n\nthey show only that, during discovery, it became clear that the\n\nComité itself is apolitical and that the political activities of\n\nits principal members remain unknown. There is no cognizable\n\nevidence that the pertinent city officials knew these facts when\n\nthey made the challenged decisions.\n\n In its brief on appeal, the Comité asserts that Mayor\n\nCruz's \"preferred contractors all donated to Mayor Cruz's\n\n\n - 11 -\n\fcampaign,\" evidencing the government defendants' hostility toward\n\nthe Comité for \"fail[ing] to show public support for Mayor Cruz.\"\n\nCertainly, a plaintiff can support a prima facie case of political\n\ndiscrimination by showing that its \"decision not to associate with\n\na political party or faction\" was a substantial or motivating\n\nfactor in an employer's decision to take an adverse employment\n\naction against the plaintiff. See Barry, 661 F.3d at 703–04. On\n\nappeal, however, the Comité points to no evidence that those\n\ndeciding to favor the preferred contractors knew that these\n\ncontractors supported the Mayor or her political party. Rather,\n\nthe Comité points only to evidence produced in discovery\n\ndemonstrating that the contractors admitted to voting for or\n\nsupporting the Popular Democratic Party at some unknown time in\n\nthe past and that one acknowledged donating to the Mayor after the\n\ndecisions at issue here had already been made. On such a record,\n\nit takes too much speculation to infer that those deciding to favor\n\nthe preferred contractors considered them political allies. We\n\ntherefore cannot conclude that the district court erred in\n\ndismissing the Comité's political discrimination claim on such a\n\nrecord. See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.\n\n1994) (\"Without more, a nonmoving plaintiff-employee's unsupported\n\nand speculative assertions regarding political discrimination will\n\nnot be enough to survive summary judgment.\").\n\n\n\n\n - 12 -\n\f As to the Comité's trademark claim, its opening brief\n\npoints to nothing in the record establishing that the \"Fiestas de\n\nla Calles San Sebastián\" term has gained the secondary meaning\n\nrequired to obtain trademark protection. See Bos. Beer Co., Ltd.\n\nv. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir. 1993)\n\n(explaining that descriptive terms are entitled to trademark\n\nprotection only upon attaining secondary meaning). And even were\n\nwe to consider the affidavits the Comité relies upon for this point\n\nin its reply brief, none even hints that the public associates\n\nthis term with a single commercial source. Bos. Duck Tours, LP v.\n\nSuper Duck Tours, LLC, 531 F.3d 1, 13 (1st Cir. 2008) (observing\n\nthat establishing secondary meaning requires proof that the\n\n\"public associates the term or phrase not only with a specific\n\nfeature or quality, but also with a single commercial source\").\n\n Thus, because the Comité has failed to show that any\n\n\"trial[-]worthy issue persists\" as to its political discrimination\n\nand trademark-infringement claims, Iverson v. City of Bos., 452\n\nF.3d 94, 98 (1st Cir. 2006), the district court did not err in\n\nentering summary judgment for the government defendants on those\n\nclaims.\n\n III.\n\n For the foregoing reasons, we affirm the district\n\ncourt's entry of summary judgment for the government defendants\n\n\n\n\n - 13 -\n\fand the district court's denial of the Comité's motion for\n\nreconsideration.\n\n\n\n\n - 14 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC., Plaintiff, Appellant, v. Carmen Yulín Cruz SOTO, in Her Official and Personal Capacities; Municipality of San Juan, Defendants, Appellees, Spanish Broadcasting System of Puerto Rico, Inc.; Alfredo Carrasquillo, Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1723\\n\\n COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\nCARMEN YULÍN CRUZ SOTO, in her official and personal capacities;\\n MUNICIPALITY OF SAN JUAN,\\n\\n Defendants, Appellees,\\n\\n SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC.; ALFREDO\\n CARRASQUILLO,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Francisco A. Besosa, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Thompson and Kayatta, Circuit Judges.\\n\\n\\n Jane A. Becker Whitaker, with whom Law Offices of Jane Becker\\nWhitaker was on brief, for appellant.\\n Héctor Benítez Arraiza and Patricia Rivera MacMurray, with\\nwhom Quiñones, Arobona & Candelario, PSC, Giselle M. Martínez-\\nVelázquez, and Raul S. Mariani-Franco were on brief, for appellees.\\n\\fMay 29, 2019\\n\\f KAYATTA, Circuit Judge. The Comité Fiestas de la Calle\\n\\nSan Sebastián, Inc. (\\\"the Comité\\\") is a non-profit corporation\\n\\nthat promotes and helps run the Fiestas de la Calle San Sebastián\\n\\nfestival in San Juan, Puerto Rico. This lawsuit arises from the\\n\\nComité's unhappiness with its diminished assigned role as vendor\\n\\nand presenter at the 2015 Fiestas de la Calle San Sebastián\\n\\ncelebration. After discovery, the district court granted summary\\n\\njudgment for San Juan Mayor Carmen Yulín Cruz and the municipality\\n\\nof San Juan on the Comité's trademark-infringement and First\\n\\nAmendment retaliation, political discrimination, and religious\\n\\ndiscrimination claims. We now affirm.\\n\\n I.\\n\\n We first survey the pertinent facts. The Fiestas de la\\n\\nCalle San Sebastián is a four-day festival held in Old San Juan.\\n\\nThe Comité takes part in organizing and running the festival in\\n\\nconjunction with the municipality of San Juan and likens its role\\n\\nto that of the New York Road Runners in planning and orchestrating\\n\\nthe New York City Marathon. Specifically, it \\\"promote[s]\\n\\ntraditional Puerto Rican music and culture, particularly the\\n\\ncelebration of Saint [Sebastián]\\\" at the festival. The Comité\\n\\npurports to be the successor organization of an older group, the\\n\\nVecinos de la Calle San Sebastián, which revitalized the festival.\\n\\n In 2014, the Comité -- which considers itself an\\n\\napolitical entity -- publicly criticized Mayor Cruz for\\n\\n\\n - 3 -\\n\\fdeemphasizing the religious and traditional aspects of the\\n\\ncelebration and for \\\"turning historic Old San Juan into a big bar\\n\\nwith contests to see who could drink the most.\\\" The Comité alleges\\n\\nthat the municipality and Mayor Cruz, who is a member of the\\n\\nPopular Democratic Party, retaliated against the Comité in various\\n\\nways in response to this criticism. Specifically, the Comité\\n\\nclaims that the municipality awarded it a less advantageous vendor\\n\\ncontract than in previous years; imposed upon the Comité onerous\\n\\ncertification requirements that it did not enforce against two\\n\\nother vendors with connections to the Popular Democratic Party;\\n\\nand granted a coveted entertainment timeslot, during which the\\n\\nComité had previously presented traditional Puerto Rican music, to\\n\\na donor of the Popular Democratic Party.\\n\\n The Comité brought First Amendment political\\n\\ndiscrimination, retaliation, and religious discrimination claims\\n\\nas well as counts for trademark infringement, alleging that the\\n\\nComité owns the \\\"Fiestas de la Calle San Sebastián\\\" mark. After\\n\\ndiscovery, the district court granted summary judgment for Cruz\\n\\nand the municipality on all counts. Comité Fiestas de la Calle\\n\\nSan Sebastián, Inc. v. Cruz, 207 F. Supp. 3d 129, 148 (D.P.R.\\n\\n2016). The Comité then filed a Rule 59(e) motion for\\n\\nreconsideration. The Comité's accompanying memorandum reasserted\\n\\nits position that the record precluded summary judgment on the\\n\\nComité's political discrimination, trademark, and libel claims.\\n\\n\\n - 4 -\\n\\fIn support of its trademark-infringement claims, the Comité also\\n\\nbrought new evidence from the U.S. Patent and Trademark Office\\n\\n(PTO) in the form of a preliminary authorization to publish the\\n\\n\\\"Fiestas de la Calle San Sebastián\\\" mark. Comité Fiestas de la\\n\\nCalle San Sebastián, Inc. v. Cruz, No. 14-1929 (FAB), 2017 WL\\n\\n6888519, at *1 (D.P.R. May 19, 2017). The district court denied\\n\\nthe motion, id. at *2, and this appeal followed.\\n\\n II.\\n\\n A.\\n\\n We first address our jurisdiction to consider the\\n\\nComité's timely appeal. Federal Rule of Appellate\\n\\nProcedure 3(c)(1)(B) requires that a notice of appeal \\\"designate\\n\\nthe judgment, order, or part thereof being appealed.\\\" While\\n\\n\\\"[c]ourts will liberally construe the requirements of Rule 3,\\\" its\\n\\nstrictures \\\"are jurisdictional in nature, and their satisfaction\\n\\nis a prerequisite to appellate review.\\\" Smith v. Barry, 502 U.S.\\n\\n244, 248 (1992).\\n\\n The Comité's notice of appeal references only the\\n\\ndistrict court's denial of its Rule 59(e) motion for\\n\\nreconsideration. The Comité's opening brief on appeal, however,\\n\\nsolely challenges portions of the underlying summary judgment\\n\\norder. The government defendants argue that this misalignment\\n\\nstrips us of our ability to reach the merits of the district\\n\\ncourt's summary judgment order.\\n\\n\\n - 5 -\\n\\f Our circuit's Rule 3(c)(1)(B) precedents certainly\\n\\naccommodate a robust application of waiver in circumstances such\\n\\nas this one. We have several times ruled that we do not have\\n\\njurisdiction to review an underlying judgment when the notice of\\n\\nappeal designates only the district court's denial of a motion for\\n\\nreconsideration. See Zukowski v. St. Lukes Home Care Program, 326\\n\\nF.3d 278, 282 (1st Cir. 2003); Mariani-Girón v. Acevedo-Ruiz, 945\\n\\nF.2d 1, 3 (1st Cir. 1991); see also Wright & Miller, Fed. Practice\\n\\n& Procedure § 3949.4 (4th ed. 2018). However, our case law also\\n\\nhas some looseness in its joints. We have recognized, for\\n\\ninstance, that \\\"courts have some latitude to consider other grounds\\n\\noriginally urged against the underlying dismissal, especially\\n\\nwhere the issues on original dismissal and the reconsideration\\n\\norder overlap or are intertwined.\\\" Díaz Aviation Corp. v. Airport\\n\\nAviation Servs., Inc., 716 F.3d 256, 262 (1st Cir. 2013) (quoting\\n\\nMcKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213 (1st Cir.\\n\\n2012)); see generally Wright & Miller, supra, § 3949.4 (\\\"[C]ourts\\n\\nhave often been willing to rescue such appellants by inferring\\n\\nthat they meant to appeal from the underlying judgment . . . .\\\").\\n\\n Accordingly, in Díaz Aviation, we considered the merits\\n\\nof a district court's underlying judgment when the notice of appeal\\n\\nonly referenced the court's denial of a motion for reconsideration\\n\\nbecause the \\\"motion for reconsideration largely rehashed the\\n\\narguments . . . made in opposition to the original judgment.\\\" 716\\n\\n\\n - 6 -\\n\\fF.3d at 262. Under similar circumstances, in Town of Norwood v.\\n\\nNew England Power Company, we addressed a challenge to the district\\n\\ncourt's motion-to-dismiss order because the appellant's motion for\\n\\nreconsideration \\\"cover[ed] . . . more or less the same points . . .\\n\\nearlier made to the district court\\\" on the motion to dismiss. 202\\n\\nF.3d 408, 415 (1st Cir. 2000).\\n\\n Here, as in Díaz Aviation and Town of Norwood, the\\n\\nComité's Rule 59(e) motion (with the sole exception of the\\n\\nreference to new evidence on the trademark claim) raised \\\"mere[]\\n\\nelaborations of claims already presented.\\\" Comité Fiestas de la\\n\\nCalle San Sebastián, Inc., 2017 WL 6888519, at *1 n.2.\\n\\nSpecifically, the Comité largely rehashed the same arguments as to\\n\\nits political discrimination and trademark claims that it raised\\n\\nin its opposition to summary judgment and that it now seeks to\\n\\nraise before us on appeal. And, as far as these claims are\\n\\nconcerned, a challenge to the denial of its motion for\\n\\nreconsideration and a challenge to the entry of summary judgment\\n\\nfor the government defendants turn on the same issue of law --\\n\\nthat is, whether a de novo review of the record supported the\\n\\ndistrict court's conclusions that there is no genuine issue of\\n\\nmaterial fact and the government defendants are entitled to\\n\\njudgment as a matter of law. See, e.g., Best Auto Repair Shop,\\n\\nInc. v. Universal Insur. Grp., 875 F.3d 733, 737 (1st Cir. 2017)\\n\\n(\\\"We 'normally review a district court's decision to grant or deny\\n\\n\\n - 7 -\\n\\fa motion for reconsideration for abuse of discretion.' But here,\\n\\nas 'the parties' arguments [are] directed to the underlying\\n\\nsubstantive issue (the propriety vel non of summary judgment)\\n\\nrather than the procedural issue (the desirability vel non of\\n\\nreconsideration),' we review de novo the summary judgment ruling.\\\"\\n\\n(citation omitted) (quoting Santiago v. Puerto Rico, 655 F.3d 61,\\n\\n67 (1st Cir. 2011))), cert. denied, 139 S. Ct. 119 (2018).\\n\\n Additionally -- and importantly -- deeming the notice of\\n\\nappeal sufficient to preserve for appellate review the overlapping\\n\\nissues of law raised by the summary judgment ruling and the\\n\\nRule 59(e) ruling will cause no unfair prejudice to the appellees\\n\\nin this case or to the administration of the appeal. The appellees\\n\\nwere timely apprised of the Comité's appeal. They point to no\\n\\nreliance of any type on the substance of the notice. And both\\n\\nparties have fully briefed the merits in ordinary course. As the\\n\\nSupreme Court has observed, \\\"[i]t is too late in the day and\\n\\nentirely contrary to the spirit of the Federal Rules of Civil\\n\\nProcedure\\\" to favor dispositions based on \\\"mere technicalities.\\\"\\n\\nFoman v. Davis, 371 U.S. 178, 181 (1962); see also Chamorro v.\\n\\nPuerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) (\\\"[B]oth\\n\\nsides have fully briefed the merits, and undertaking appellate\\n\\nreview of the original order of dismissal would not unfairly\\n\\nprejudice [appellee].\\\"). Moreover, had the notice more wisely\\n\\nappealed the \\\"final judgment,\\\" the defendants would have learned\\n\\n\\n - 8 -\\n\\fexactly which orders the Comité wished to challenge in its appeal\\n\\nno sooner than they did here. See Denault v. Ahern, 857 F.3d 76,\\n\\n81–82 (1st Cir. 2017) (explaining that an appeal of the final\\n\\njudgment also appeals all interlocutory orders).\\n\\n That the Comité's Rule 59(e) motion also included new\\n\\nargumentation as to its trademark claim should not strip us of our\\n\\njurisdiction over these other, preserved arguments. In Biltcliffe\\n\\nv. CitiMortgage, Inc., we found that we lacked jurisdiction over\\n\\na plaintiff's challenge to the district court's entry of summary\\n\\njudgment when his notice of appeal only referenced his motion for\\n\\nreconsideration and his memorandum in support of reconsideration\\n\\nadvanced additional arguments not raised at summary judgment. 772\\n\\nF.3d 925, 929–30 (1st Cir. 2014). Importantly, we did so in part\\n\\nbecause we construed the plaintiff's opening appellate brief as\\n\\nonly advancing arguments directed at the district court's denial\\n\\nof the motion for reconsideration, see id. (\\\"To the extent\\n\\n[Biltcliffe] revisits certain substantive bases for the district\\n\\ncourt's summary judgment order, he argues only that the court made\\n\\nmanifest errors of law and, as a result, abused its discretion\\n\\n. . . .\\\"), vitiating any claim that the defendant had proper notice\\n\\nof the plaintiff's intent to appeal the entry of summary judgment.\\n\\nHere, by contrast, the plaintiff's opening appellate brief plainly\\n\\nand exclusively sought direct review of the summary judgment ruling\\n\\nunder Rule 56. Accordingly, we hold that the Comité's appeal\\n\\n\\n - 9 -\\n\\ffairly encompasses both the Rule 59(e) ruling and those parts of\\n\\nthe district court's summary judgment order that are addressed in\\n\\nthe Comité's memorandum in support of its Rule 59(e) motion (i.e.,\\n\\nthe Comité's political discrimination and trademark-infringement\\n\\nclaims).\\n\\n Despite our willingness to broadly construe the notice\\n\\nof appeal, the Comité has nonetheless failed to preserve for our\\n\\nreview every claim that it includes in its appellate briefs. The\\n\\nComité's First Amendment retaliation claim was not raised at all\\n\\nin its motion for reconsideration, so our dispensation for\\n\\noverlapping arguments cannot save that claim. And while the\\n\\nComité's appeal of the Rule 59(e) motion plainly sufficed to\\n\\npreserve the Comité's argument that new evidence from the PTO\\n\\nsupported its trademark claim, the Comité chose not to raise that\\n\\nargument in its main brief on appeal. Hence, this claim is waived.\\n\\nSee Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29\\n\\n(1st Cir. 2015).\\n\\n B.\\n\\n We finally turn to the merits of the preserved rulings.\\n\\nThe Comité's political discrimination claim rests on the\\n\\nallegation that the government defendants gave more favorable\\n\\norganizational roles and contracts to two other event organizers\\n\\ndue to their political support for Mayor Cruz and the Popular\\n\\nDemocratic Party. The Comité also alleges that the government\\n\\n\\n - 10 -\\n\\fdefendants subjected it to a more rigorous permitting process than\\n\\nit did these political supporters. The district court nipped this\\n\\nclaim in the bud on summary judgment because the Comité pointed to\\n\\nno evidence that the government defendants knew the political\\n\\naffiliation of the Comité or its members. Comité Fiestas de la\\n\\nCalle San Sebastián, Inc., 207 F. Supp. 3d at 144. The court's\\n\\nlegal premise aptly captures the law: A plaintiff bringing a claim\\n\\nthat a government entity discriminated against it based on\\n\\npolitical affiliation need generally prove, as a starter, that the\\n\\ndefendant was aware of the plaintiff's relevant affiliation (or\\n\\nlack thereof). See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.\\n\\n2011); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.\\n\\n2010). So, the only question for us is whether the record lacks\\n\\nsuch evidence.\\n\\n The Comité points to four pages of the record that it\\n\\nclaims undermine the district court's assessment of the summary-\\n\\njudgment record. But as best as we can tell from those pages,\\n\\nthey show only that, during discovery, it became clear that the\\n\\nComité itself is apolitical and that the political activities of\\n\\nits principal members remain unknown. There is no cognizable\\n\\nevidence that the pertinent city officials knew these facts when\\n\\nthey made the challenged decisions.\\n\\n In its brief on appeal, the Comité asserts that Mayor\\n\\nCruz's \\\"preferred contractors all donated to Mayor Cruz's\\n\\n\\n - 11 -\\n\\fcampaign,\\\" evidencing the government defendants' hostility toward\\n\\nthe Comité for \\\"fail[ing] to show public support for Mayor Cruz.\\\"\\n\\nCertainly, a plaintiff can support a prima facie case of political\\n\\ndiscrimination by showing that its \\\"decision not to associate with\\n\\na political party or faction\\\" was a substantial or motivating\\n\\nfactor in an employer's decision to take an adverse employment\\n\\naction against the plaintiff. See Barry, 661 F.3d at 703–04. On\\n\\nappeal, however, the Comité points to no evidence that those\\n\\ndeciding to favor the preferred contractors knew that these\\n\\ncontractors supported the Mayor or her political party. Rather,\\n\\nthe Comité points only to evidence produced in discovery\\n\\ndemonstrating that the contractors admitted to voting for or\\n\\nsupporting the Popular Democratic Party at some unknown time in\\n\\nthe past and that one acknowledged donating to the Mayor after the\\n\\ndecisions at issue here had already been made. On such a record,\\n\\nit takes too much speculation to infer that those deciding to favor\\n\\nthe preferred contractors considered them political allies. We\\n\\ntherefore cannot conclude that the district court erred in\\n\\ndismissing the Comité's political discrimination claim on such a\\n\\nrecord. See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.\\n\\n1994) (\\\"Without more, a nonmoving plaintiff-employee's unsupported\\n\\nand speculative assertions regarding political discrimination will\\n\\nnot be enough to survive summary judgment.\\\").\\n\\n\\n\\n\\n - 12 -\\n\\f As to the Comité's trademark claim, its opening brief\\n\\npoints to nothing in the record establishing that the \\\"Fiestas de\\n\\nla Calles San Sebastián\\\" term has gained the secondary meaning\\n\\nrequired to obtain trademark protection. See Bos. Beer Co., Ltd.\\n\\nv. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir. 1993)\\n\\n(explaining that descriptive terms are entitled to trademark\\n\\nprotection only upon attaining secondary meaning). And even were\\n\\nwe to consider the affidavits the Comité relies upon for this point\\n\\nin its reply brief, none even hints that the public associates\\n\\nthis term with a single commercial source. Bos. Duck Tours, LP v.\\n\\nSuper Duck Tours, LLC, 531 F.3d 1, 13 (1st Cir. 2008) (observing\\n\\nthat establishing secondary meaning requires proof that the\\n\\n\\\"public associates the term or phrase not only with a specific\\n\\nfeature or quality, but also with a single commercial source\\\").\\n\\n Thus, because the Comité has failed to show that any\\n\\n\\\"trial[-]worthy issue persists\\\" as to its political discrimination\\n\\nand trademark-infringement claims, Iverson v. City of Bos., 452\\n\\nF.3d 94, 98 (1st Cir. 2006), the district court did not err in\\n\\nentering summary judgment for the government defendants on those\\n\\nclaims.\\n\\n III.\\n\\n For the foregoing reasons, we affirm the district\\n\\ncourt's entry of summary judgment for the government defendants\\n\\n\\n\\n\\n - 13 -\\n\\fand the district court's denial of the Comité's motion for\\n\\nreconsideration.\\n\\n\\n\\n\\n - 14 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1974,"cells":{"id":{"kind":"number","value":4624888,"string":"4,624,888"},"name":{"kind":"string","value":"U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, Appellee, v. Julia L. JONES, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"U.S. Bank Trust, N.A. v. Jones"},"decision_date":{"kind":"string","value":"2019-05-30"},"docket_number":{"kind":"string","value":"18-1719P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Souter, Stahl\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1719\\n U.S. BANK TRUST, N.A.,\\n as Trustee for LSF9 Master Participation Trust,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n JULIA L. JONES,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,\\n and Stahl, Circuit Judge.\\n\\n\\n Thomas A. Cox for appellant.\\n Matthew A. Fitzgerald, with whom Ashley P. Peterson was on\\nbrief, for appellee.\\n Michael A.F. Johnson and Dirk C. Phillips on brief for Federal\\nHousing Finance Agency, amicus curiae.\\n Stuart Rossman, Geoff Walsh, J.L. Pottenger, Jr., and Jeffrey\\nGentes on brief for National Consumer Law Center and Jerome N.\\nFrank Legal Services Organization, amici curiae.\\n Frank D’Alessandro and Jonathan E. Selkowitz on brief for\\nPine Tree Legal Assistance, Inc., amicus curiae.\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\fMay 30, 2019\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. In this diversity case,\\n\\nappellee U.S. Bank Trust, N.A., sued appellant Julia Jones for\\n\\nbreach of contract and breach of promissory note, among other\\n\\nclaims, after Jones stopped making payments due to U.S. Bank on\\n\\nher mortgage loan. At trial, U.S. Bank sought to establish the\\n\\ntotal amount owed on the loan account by introducing a computer\\n\\nprintout, marked as Exhibit 8, that contained an account summary\\n\\nand a list of transactions related to the loan. The District Court\\n\\nadmitted Exhibit 8 into evidence and relied on it in granting\\n\\njudgment to U.S. Bank in the amount of $226,458.28. We affirm.\\n\\n I\\n\\n Jones argues on appeal that admitting Exhibit 8 violated\\n\\nthe Federal Rules of Evidence. \\\"We review the district court's\\n\\ninterpretation of the Federal Rules of Evidence de novo, but its\\n\\napplication of those Rules for abuse of discretion.\\\" Bradley v.\\n\\nSugarbaker, 891 F.3d 29, 33 (1st Cir. 2018). \\\"[T]his court will\\n\\nnot substitute its judgment\\\" in a discretionary evidentiary ruling\\n\\n\\\"for that of the district court unless left with a definite and\\n\\nfirm conviction that the court below committed a clear error of\\n\\njudgment.\\\" Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir.\\n\\n2018) (quoting Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir.\\n\\n2016) (internal quotation marks omitted)).\\n\\n\\n\\n\\n - 3 -\\n\\f A\\n\\n Rule 803(6), known as the business records exception,\\n\\nauthorizes the admission of certain documents under an exception\\n\\nto the usual prohibition against the admission of hearsay\\n\\nstatements, that is, statements by an out-of-court declarant\\n\\noffered into evidence to prove the truth of the matter asserted.\\n\\nFed. R. Evid. 801(c), 802. Rule 803(6) provides that \\\"[a] record\\n\\nof an act, event, condition, opinion, or diagnosis\\\" is \\\"not\\n\\nexcluded by the rule against hearsay\\\" if:\\n\\n \\\"(A) the record was made at or near the time\\n by-or from information transmitted by—someone\\n with knowledge;\\n (B) the record was kept in the course of a\\n regularly conducted activity of a business,\\n organization, occupation, or calling, whether\\n or not for profit;\\n (C) making the record was a regular practice\\n of that activity;\\n (D) all these conditions are shown by the\\n testimony of the custodian or another\\n qualified witness, or by a certification that\\n complies with Rule 902(11) or (12) or with a\\n statute permitting certification; and\\n (E) the opponent does not show that the\\n source of information or the method or\\n circumstances of preparation indicate a lack\\n of trustworthiness.\\\"\\n\\n Jones says that Exhibit 8 does not meet the requirements\\n\\nof this rule because of the nature of the information the Exhibit\\n\\ncontains or is said to rest upon. Exhibit 8 is a summary of\\n\\nJones's account as a mortgage borrower, and, in particular, of the\\n\\ntransactions the mortgage history comprises, that is maintained by\\n\\n\\n\\n - 4 -\\n\\fthe current independent servicer of Jones's account, Caliber Home\\n\\nLoans, Inc. Critically, however, this record is a product of\\n\\nrecords of some transactions that took place before Caliber became\\n\\nservicer of Jones's account. The prior entries were created by\\n\\ntwo other loan servicers, Seterus and Bank of America, and were\\n\\nintegrated into Caliber's database when Caliber succeeded them as\\n\\nservicer. According to Jones, these integrated business records\\n\\nfrom the prior servicers preclude admission of Exhibit 8 under the\\n\\nquoted rule unless supported by testimony of a custodian or\\n\\nqualified witness with personal knowledge of the record keeping of\\n\\nthe respective prior servicers.\\n\\n But there is no categorical rule barring the admission\\n\\nof integrated business records under Rule 803(6) based only on the\\n\\ntestimony from a representative of the successor business.\\n\\n\\\"[W]hether a third party's records . . . can be integrated into\\n\\nthe records of the offering entity . . . for purposes of admission\\n\\nunder the business records exception is not an issue upon which\\n\\nthis circuit has reached a uniform conclusion\\\" covering every\\n\\ninstance. United States v. Savarese, 686 F.3d 1, 12 (1st Cir.\\n\\n2012). Rather, the admissibility of the evidence turns on the\\n\\nfacts of each case.\\n\\n Thus, we have affirmed the admission of business records\\n\\ncontaining third-party entries without third-party testimony where\\n\\nthe entries were \\\"intimately integrated\\\" into the business\\n\\n\\n - 5 -\\n\\frecords, FTC v. Direct Marketing Concepts, Inc., 624 F.3d 1, 16\\n\\nn.15 (1st Cir. 2010), or where the party that produced the business\\n\\nrecords \\\"relied on the [third-party] document and documents such\\n\\nas those[] in his business,\\\" United States v. Doe, 960 F.2d 221,\\n\\n223 (1st Cir. 1992) (internal quotation marks omitted).\\n\\nConversely, in the absence of third-party evidence, we have\\n\\nrejected the admission of business records containing or relying\\n\\non the accuracy of third-party information integrated into the\\n\\nlater record where, for example, the later business did not \\\"use[]\\n\\na procedure for verifying\\\" such information, lacked a \\\"self-\\n\\ninterest in assuring the accuracy of the outside information,\\\"\\n\\nUnited States v. Vigneau, 187 F.3d 70, 77 & n.6 (1st Cir. 1999)\\n\\n(emphasis omitted), or sought admission of third-party statements\\n\\nmade \\\"by a stranger to it,\\\" Bradley, 891 F.3d at 35 (quoting\\n\\nVigneau, 187 F.3d at 75 (alterations omitted)). The key question\\n\\nis whether the records in question are \\\"reliable enough to be\\n\\nadmissible.\\\" Direct Marketing Concepts, 624 F.3d at 16 n.15.\\n\\n In answering that question, we are mindful that the\\n\\n\\\"reliability of business records is said variously to be supplied\\n\\nby systematic checking, by regularity and continuity which produce\\n\\nhabits of precision, by actual experience of business in relying\\n\\nupon them, or by a duty to make an accurate record as part of a\\n\\ncontinuing job or occupation.\\\" Fed. R. Evid. 803 advisory\\n\\ncommittee's note to 1972 proposed rules. The rule seeks \\\"to\\n\\n\\n - 6 -\\n\\fcapture these factors and to extend their impact\\\" by applying them\\n\\nto a \\\"regularly conducted activity.\\\" Id.\\n\\n Based on the facts presented here, we cannot say that\\n\\nthe District Court abused its discretion in finding Exhibit 8 with\\n\\nits integrated elements reliable enough to admit under Rule 803(6).\\n\\nFacts in the record, including testimony provided by an employee\\n\\nof Caliber, Letycia Lopez, establish that the servicer relied on\\n\\nthe accuracy of the mortgage history and took measures to verify\\n\\nthe same. As the District Court explained, Lopez testified that\\n\\nCaliber incorporated the previous servicer's records into its own\\n\\ndatabase and \\\"plac[ed] its own financial interest at stake by\\n\\nrelying on those records,\\\" and that \\\"Caliber's acquisition\\n\\ndepartment took steps to review the previous servicer's records in\\n\\na way that assured itself of the accuracy of the records.\\\" 330 F.\\n\\nSupp. 3d 530, 543 (D. Me. 2018); see Trial Tr. 28:3-6, 60:17-19.\\n\\nThe District Court also soundly noted that Jones did not \\\"dispute\\n\\nthe transaction history by claiming overbilling or unrecorded\\n\\npayments,\\\" as she surely could have done if the records were\\n\\ninaccurate. 330 F. Supp. 3d at 544; see Fed. R. Evid. 803(6)(E).\\n\\nNor has Jones contested the District Court's conclusion that the\\n\\ndata revealed \\\"no discrepancies\\\" giving rise to doubt that the\\n\\nbusiness records were trustworthy. 330 F. Supp. 3d at 541; see\\n\\nid. at 544.\\n\\n\\n\\n\\n - 7 -\\n\\f Jones seeks to eliminate the significance of the\\n\\ntestimony from Lopez by arguing that she was not a \\\"qualified\\n\\nwitness\\\" within the meaning of subsection (D) of Rule 803(6).\\n\\nAccording to Jones, Lopez was not personally involved in the\\n\\ncreation of Caliber's records and lacked knowledge about how prior\\n\\nloan servicers maintained their records. But a \\\"qualified witness\\\"\\n\\n\\\"need not be the person who actually prepared the record.\\\" Wallace\\n\\nMotor Sales, Inc. v. Am. Motors Sales Corp., 780 F.2d 1049, 1061\\n\\n(1st Cir. 1985). Rather, a \\\"qualified witness\\\" is \\\"simply one who\\n\\ncan explain and be cross-examined concerning the manner in which\\n\\nthe records are made and kept.\\\" Id. Here, Lopez provided detailed\\n\\ntestimony regarding how Caliber maintained its records, Trial Tr.\\n\\n8-13, and how it verified the accuracy of the records it got from\\n\\nother servicers, id. at 26:22-28:16. Lopez therefore was\\n\\n\\\"qualified\\\" within the meaning of Rule 803(6).\\n\\n Jones not only fails to eliminate Lopez's competence as\\n\\na witness, but she also fails to discredit the substance of Lopez's\\n\\ntestimony that the incorporated records were reliable owing to the\\n\\nvery fact that Caliber put its financial interest at stake by\\n\\nrelying on them. Jones claims that any reliance is of little, if\\n\\nany, evidentiary worth, simply because Caliber is a contractor\\n\\nthat services the mortgage account, not the holder of the note.\\n\\nAccording to Jones, if the incorporated information turns out to\\n\\nbe unreliable so as to defeat any action to collect the balance\\n\\n\\n - 8 -\\n\\fCaliber says is due, the loser will be U.S. Bank, not Caliber.\\n\\nBut this is simply unrealistic. If Caliber is shown to be claiming\\n\\nunsupportable facts about an account's history, to the financial\\n\\ndetriment of U.S. Bank as assigned payee of a mortgagor's note,\\n\\nCaliber's business with U.S. Bank will suffer accordingly, as will\\n\\nits appeal in the eyes of other note holders who contract or might\\n\\ncontract with Caliber for its services. Since Jones gives us no\\n\\nsufficient reason to refuse to apply the evidence of reliance here,\\n\\nwe treat it as we did in Doe, 960 F.2d at 223, as evidence of\\n\\nincorporation's reliability.\\n\\n Nor are we persuaded by Jones's fallback argument that\\n\\nit was error to interpret Federal Rule 803(6) in a manner\\n\\ninconsistent with the corresponding state rule of evidence in\\n\\nMaine, where this diversity suit was brought. The District Court\\n\\nwas doing nothing other than following the ordinary practice of\\n\\nfederal courts to apply the Federal Rules of Evidence in diversity\\n\\ncases. See Downey v. Bob's Discount Furniture Holdings, Inc., 633\\n\\nF.3d 1, 8 (1st Cir. 2011).\\n\\n Of course, we leave open the possibility that there could\\n\\nbe instances in which the State rule counts as a \\\"substantive\\\"\\n\\nrule that must be applied under the doctrine of Erie Railroad Co.\\n\\nv. Tompkins, 304 U.S. 64 (1938). See McInnis v. A.M.F., Inc., 765\\n\\nF.2d 240, 245 (1st Cir. 1985). But this is no such case, given\\n\\nthat Federal Rule 803(6) \\\"endeavor[s] to reach almost identical\\n\\n\\n - 9 -\\n\\fresults\\\" as its Maine counterpart. Id. While Federal Rule 803(6)\\n\\nand Maine Rule 803(6) were not entire facsimiles of one another at\\n\\nthe time the District Court decided this case, an authoritative\\n\\ntreatise on Maine evidence had noted that the State and Federal\\n\\nversions of the rule were \\\"substantively the same,\\\" Richard H.\\n\\nField & Peter L. Murray, Maine Evidence 417 (4th ed. 1997), and\\n\\nthe State has recently revised its Rule 803(6) so that its text is\\n\\nnow identical to the Federal Rule, Me. R. Evid. 803(6) advisory\\n\\ncommittee's note to August 2018 amendment (amending the Maine Rule\\n\\n\\\"to follow a corresponding 2014 amendment\\\" to the Federal Rule).\\n\\nMaine cases also take the same basic approach as our cases do:\\n\\nMaine permits the admission of integrated business records if the\\n\\nevidence \\\"demonstrate[s] the reliability and trustworthiness of\\n\\nthe information.\\\" Beneficial Me. Inc. v. Carter, 25 A.3d 96, 102\\n\\n(Me. 2011).1 Because there is no material conflict between the\\n\\nMaine Rule and the Federal Rule, there is no ground for requiring\\n\\nthe Maine Rule to be applied in this case.\\n\\n\\n\\n 1 Jones alleges that two recent decisions of the Supreme\\nJudicial Court of Maine reject an integrated business records\\nexception. See KeyBank Nat'l Ass'n v. Estate of Quint, 176 A.3d\\n717, 721-722 (Me. 2017); Deutsche Bank Nat'l Tr. Co. v. Eddins,\\n182 A.3d 1241, 1244-45 (Me. 2018). But both decisions rely on\\nCarter and explicitly acknowledge that integrated business records\\nmay be admitted into evidence. KeyBank, 176 A.3d at 721; Deutsche\\nBank, 182 A.3d at 1244. Even if these Maine cases are not identical\\nto our cases in all of their particulars, they follow the same\\ncase-by-case reliability approach to the admissibility of\\nintegrated business records. See Carter, 25 A.3d at 101.\\n\\n\\n - 10 -\\n\\f In sum, we reject Jones's challenge under Rule 803(6) to\\n\\nthe District Court's admission of Exhibit 8. We do so, however,\\n\\nwhile acknowledging that the business records of loan servicers\\n\\nmay not always carry the requisite indicia of reliability. See,\\n\\ne.g., Brief for National Consumer Law Center and Jerome N. Frank\\n\\nLegal Services Organization as Amici Curiae 12-18. It therefore\\n\\nbears repeating: the admission of integrated business records in\\n\\nthis context must turn, as it does here, on the particular facts\\n\\nof each case.\\n\\n B\\n\\n Jones also claims that the District Court's admission of\\n\\nExhibit 8 violated Federal Rules of Evidence 901, 1001, and 1002.\\n\\nRule 901(a) provides that \\\"the proponent must produce evidence\\n\\nsufficient to support a finding that the item is what the proponent\\n\\nclaims it is.\\\" The related Rule 1002 requires \\\"[a]n original\\n\\nwriting, recording, or photograph . . . in order to prove its\\n\\ncontent unless these rules or a federal statute provides\\n\\notherwise,\\\" while Rule 1001(d) includes the provision that for\\n\\n\\\"electronically stored information,\\\" an \\\"original\\\" is \\\"any\\n\\nprintout . . . if it accurately reflects the information.\\\"\\n\\n The District Court did not abuse its discretion in\\n\\nconcluding that Exhibit 8 satisfied these rules. Lopez testified\\n\\nthat she \\\"reviewed personally the records in this particular case\\\"\\n\\nand \\\"found them to be accurate,\\\" Trial Tr. 28:9-13, and\\n\\n\\n - 11 -\\n\\fspecifically attested that Exhibit 8 was \\\"an account summary and\\n\\npayment history\\\" printed from Caliber's records. Trial Tr. 25:19-\\n\\n26:15. That testimony is sufficient to \\\"support a finding\\\" that\\n\\nExhibit 8 \\\"is what the proponent claims it is,\\\" as Rule 901(a)\\n\\nrequires, and it also suffices to support a finding that Exhibit\\n\\n8 is a \\\"printout\\\" that \\\"accurately reflects\\\" the data in Caliber's\\n\\ndatabase and is thus an \\\"original writing,\\\" as Rules 1001(d) and\\n\\n1002 require.\\n\\n Jones argues that Lopez's testimony was inadequate\\n\\nbecause it did not supply \\\"[e]vidence describing a process or\\n\\nsystem and showing that it produces an accurate result,\\\" as is\\n\\ncontemplated by Rule 901(b)(9). But Rule 901(b)(9) offers just\\n\\none illustrative \\\"example[] . . . of evidence that satisfies the\\n\\nrequirement\\\" of Rule 901(a), and a proponent may satisfy Rule\\n\\n901(a) by other means. Fed. R. Evid. 901(b). Thus, even in the\\n\\nabsence of expert testimony regarding the accuracy of the process,\\n\\nwe have held that the testimony of \\\"someone knowledgeable, trained,\\n\\nand experienced in analyzing\\\" the program's results may show that\\n\\n\\\"the item is what the proponent claims it is,\\\" as Rule 901(a)\\n\\nrequires. United States v. Espinal-Almeida, 699 F.3d 588, 612-\\n\\n613 (1st Cir. 2012). Here, Lopez's testimony amply demonstrates\\n\\nthat she was \\\"knowledgeable, trained, and experienced\\\" in\\n\\nanalyzing Caliber's records. Id.; see Trial Tr. 32:1-33:11. And\\n\\nher testimony indicated that Exhibit 8 is an accurate printout\\n\\n\\n - 12 -\\n\\ffrom Caliber's database. Trial Tr. 25:19-26:15. There was no\\n\\nabuse of the District Court's discretion in admitting Exhibit 8.\\n\\n II\\n\\n There is one final matter of housekeeping. Jones claims\\n\\nthat the District Court erred by awarding U.S. Bank approximately\\n\\n$23,000 in charges for escrow, title fees, and inspections that\\n\\nwere not recoverable under the terms of her promissory note.\\n\\nBecause she did not raise that claim in the District Court, our\\n\\nreview is for plain error. Blockel v. J.C. Penney Co., 337 F.3d\\n\\n17, 25 (1st Cir. 2003). Jones's note permits recovery for \\\"costs\\n\\nand expenses in enforcing this Note to the extent not prohibited\\n\\nby applicable law.\\\" Note 6(E). Amounts owed for escrow, title\\n\\nfees, and inspections qualify as \\\"costs and expenses\\\" incurred in\\n\\n\\\"enforcing this Note,\\\" for they stem from U.S. Bank's efforts to\\n\\nmaintain the property securing the note, and they likely would not\\n\\nhave been incurred absent Jones's breach. Jones has not identified\\n\\nany contrary evidence demonstrating that the award of these charges\\n\\nwas error, plain or otherwise.\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n - 13 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402141/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"STAHL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624888/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, Appellee, v. Julia L. JONES, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1719\n U.S. BANK TRUST, N.A.,\n as Trustee for LSF9 Master Participation Trust,\n\n Plaintiff, Appellee,\n\n v.\n\n JULIA L. JONES,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter, Associate Justice,\n and Stahl, Circuit Judge.\n\n\n Thomas A. Cox for appellant.\n Matthew A. Fitzgerald, with whom Ashley P. Peterson was on\nbrief, for appellee.\n Michael A.F. Johnson and Dirk C. Phillips on brief for Federal\nHousing Finance Agency, amicus curiae.\n Stuart Rossman, Geoff Walsh, J.L. Pottenger, Jr., and Jeffrey\nGentes on brief for National Consumer Law Center and Jerome N.\nFrank Legal Services Organization, amici curiae.\n Frank D’Alessandro and Jonathan E. Selkowitz on brief for\nPine Tree Legal Assistance, Inc., amicus curiae.\n\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\fMay 30, 2019\n\n\n\n\n - 2 -\n\f SOUTER, Associate Justice. In this diversity case,\n\nappellee U.S. Bank Trust, N.A., sued appellant Julia Jones for\n\nbreach of contract and breach of promissory note, among other\n\nclaims, after Jones stopped making payments due to U.S. Bank on\n\nher mortgage loan. At trial, U.S. Bank sought to establish the\n\ntotal amount owed on the loan account by introducing a computer\n\nprintout, marked as Exhibit 8, that contained an account summary\n\nand a list of transactions related to the loan. The District Court\n\nadmitted Exhibit 8 into evidence and relied on it in granting\n\njudgment to U.S. Bank in the amount of $226,458.28. We affirm.\n\n I\n\n Jones argues on appeal that admitting Exhibit 8 violated\n\nthe Federal Rules of Evidence. \"We review the district court's\n\ninterpretation of the Federal Rules of Evidence de novo, but its\n\napplication of those Rules for abuse of discretion.\" Bradley v.\n\nSugarbaker, 891 F.3d 29, 33 (1st Cir. 2018). \"[T]his court will\n\nnot substitute its judgment\" in a discretionary evidentiary ruling\n\n\"for that of the district court unless left with a definite and\n\nfirm conviction that the court below committed a clear error of\n\njudgment.\" Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir.\n\n2018) (quoting Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir.\n\n2016) (internal quotation marks omitted)).\n\n\n\n\n - 3 -\n\f A\n\n Rule 803(6), known as the business records exception,\n\nauthorizes the admission of certain documents under an exception\n\nto the usual prohibition against the admission of hearsay\n\nstatements, that is, statements by an out-of-court declarant\n\noffered into evidence to prove the truth of the matter asserted.\n\nFed. R. Evid. 801(c), 802. Rule 803(6) provides that \"[a] record\n\nof an act, event, condition, opinion, or diagnosis\" is \"not\n\nexcluded by the rule against hearsay\" if:\n\n \"(A) the record was made at or near the time\n by-or from information transmitted by—someone\n with knowledge;\n (B) the record was kept in the course of a\n regularly conducted activity of a business,\n organization, occupation, or calling, whether\n or not for profit;\n (C) making the record was a regular practice\n of that activity;\n (D) all these conditions are shown by the\n testimony of the custodian or another\n qualified witness, or by a certification that\n complies with Rule 902(11) or (12) or with a\n statute permitting certification; and\n (E) the opponent does not show that the\n source of information or the method or\n circumstances of preparation indicate a lack\n of trustworthiness.\"\n\n Jones says that Exhibit 8 does not meet the requirements\n\nof this rule because of the nature of the information the Exhibit\n\ncontains or is said to rest upon. Exhibit 8 is a summary of\n\nJones's account as a mortgage borrower, and, in particular, of the\n\ntransactions the mortgage history comprises, that is maintained by\n\n\n\n - 4 -\n\fthe current independent servicer of Jones's account, Caliber Home\n\nLoans, Inc. Critically, however, this record is a product of\n\nrecords of some transactions that took place before Caliber became\n\nservicer of Jones's account. The prior entries were created by\n\ntwo other loan servicers, Seterus and Bank of America, and were\n\nintegrated into Caliber's database when Caliber succeeded them as\n\nservicer. According to Jones, these integrated business records\n\nfrom the prior servicers preclude admission of Exhibit 8 under the\n\nquoted rule unless supported by testimony of a custodian or\n\nqualified witness with personal knowledge of the record keeping of\n\nthe respective prior servicers.\n\n But there is no categorical rule barring the admission\n\nof integrated business records under Rule 803(6) based only on the\n\ntestimony from a representative of the successor business.\n\n\"[W]hether a third party's records . . . can be integrated into\n\nthe records of the offering entity . . . for purposes of admission\n\nunder the business records exception is not an issue upon which\n\nthis circuit has reached a uniform conclusion\" covering every\n\ninstance. United States v. Savarese, 686 F.3d 1, 12 (1st Cir.\n\n2012). Rather, the admissibility of the evidence turns on the\n\nfacts of each case.\n\n Thus, we have affirmed the admission of business records\n\ncontaining third-party entries without third-party testimony where\n\nthe entries were \"intimately integrated\" into the business\n\n\n - 5 -\n\frecords, FTC v. Direct Marketing Concepts, Inc., 624 F.3d 1, 16\n\nn.15 (1st Cir. 2010), or where the party that produced the business\n\nrecords \"relied on the [third-party] document and documents such\n\nas those[] in his business,\" United States v. Doe, 960 F.2d 221,\n\n223 (1st Cir. 1992) (internal quotation marks omitted).\n\nConversely, in the absence of third-party evidence, we have\n\nrejected the admission of business records containing or relying\n\non the accuracy of third-party information integrated into the\n\nlater record where, for example, the later business did not \"use[]\n\na procedure for verifying\" such information, lacked a \"self-\n\ninterest in assuring the accuracy of the outside information,\"\n\nUnited States v. Vigneau, 187 F.3d 70, 77 & n.6 (1st Cir. 1999)\n\n(emphasis omitted), or sought admission of third-party statements\n\nmade \"by a stranger to it,\" Bradley, 891 F.3d at 35 (quoting\n\nVigneau, 187 F.3d at 75 (alterations omitted)). The key question\n\nis whether the records in question are \"reliable enough to be\n\nadmissible.\" Direct Marketing Concepts, 624 F.3d at 16 n.15.\n\n In answering that question, we are mindful that the\n\n\"reliability of business records is said variously to be supplied\n\nby systematic checking, by regularity and continuity which produce\n\nhabits of precision, by actual experience of business in relying\n\nupon them, or by a duty to make an accurate record as part of a\n\ncontinuing job or occupation.\" Fed. R. Evid. 803 advisory\n\ncommittee's note to 1972 proposed rules. The rule seeks \"to\n\n\n - 6 -\n\fcapture these factors and to extend their impact\" by applying them\n\nto a \"regularly conducted activity.\" Id.\n\n Based on the facts presented here, we cannot say that\n\nthe District Court abused its discretion in finding Exhibit 8 with\n\nits integrated elements reliable enough to admit under Rule 803(6).\n\nFacts in the record, including testimony provided by an employee\n\nof Caliber, Letycia Lopez, establish that the servicer relied on\n\nthe accuracy of the mortgage history and took measures to verify\n\nthe same. As the District Court explained, Lopez testified that\n\nCaliber incorporated the previous servicer's records into its own\n\ndatabase and \"plac[ed] its own financial interest at stake by\n\nrelying on those records,\" and that \"Caliber's acquisition\n\ndepartment took steps to review the previous servicer's records in\n\na way that assured itself of the accuracy of the records.\" 330 F.\n\nSupp. 3d 530, 543 (D. Me. 2018); see Trial Tr. 28:3-6, 60:17-19.\n\nThe District Court also soundly noted that Jones did not \"dispute\n\nthe transaction history by claiming overbilling or unrecorded\n\npayments,\" as she surely could have done if the records were\n\ninaccurate. 330 F. Supp. 3d at 544; see Fed. R. Evid. 803(6)(E).\n\nNor has Jones contested the District Court's conclusion that the\n\ndata revealed \"no discrepancies\" giving rise to doubt that the\n\nbusiness records were trustworthy. 330 F. Supp. 3d at 541; see\n\nid. at 544.\n\n\n\n\n - 7 -\n\f Jones seeks to eliminate the significance of the\n\ntestimony from Lopez by arguing that she was not a \"qualified\n\nwitness\" within the meaning of subsection (D) of Rule 803(6).\n\nAccording to Jones, Lopez was not personally involved in the\n\ncreation of Caliber's records and lacked knowledge about how prior\n\nloan servicers maintained their records. But a \"qualified witness\"\n\n\"need not be the person who actually prepared the record.\" Wallace\n\nMotor Sales, Inc. v. Am. Motors Sales Corp., 780 F.2d 1049, 1061\n\n(1st Cir. 1985). Rather, a \"qualified witness\" is \"simply one who\n\ncan explain and be cross-examined concerning the manner in which\n\nthe records are made and kept.\" Id. Here, Lopez provided detailed\n\ntestimony regarding how Caliber maintained its records, Trial Tr.\n\n8-13, and how it verified the accuracy of the records it got from\n\nother servicers, id. at 26:22-28:16. Lopez therefore was\n\n\"qualified\" within the meaning of Rule 803(6).\n\n Jones not only fails to eliminate Lopez's competence as\n\na witness, but she also fails to discredit the substance of Lopez's\n\ntestimony that the incorporated records were reliable owing to the\n\nvery fact that Caliber put its financial interest at stake by\n\nrelying on them. Jones claims that any reliance is of little, if\n\nany, evidentiary worth, simply because Caliber is a contractor\n\nthat services the mortgage account, not the holder of the note.\n\nAccording to Jones, if the incorporated information turns out to\n\nbe unreliable so as to defeat any action to collect the balance\n\n\n - 8 -\n\fCaliber says is due, the loser will be U.S. Bank, not Caliber.\n\nBut this is simply unrealistic. If Caliber is shown to be claiming\n\nunsupportable facts about an account's history, to the financial\n\ndetriment of U.S. Bank as assigned payee of a mortgagor's note,\n\nCaliber's business with U.S. Bank will suffer accordingly, as will\n\nits appeal in the eyes of other note holders who contract or might\n\ncontract with Caliber for its services. Since Jones gives us no\n\nsufficient reason to refuse to apply the evidence of reliance here,\n\nwe treat it as we did in Doe, 960 F.2d at 223, as evidence of\n\nincorporation's reliability.\n\n Nor are we persuaded by Jones's fallback argument that\n\nit was error to interpret Federal Rule 803(6) in a manner\n\ninconsistent with the corresponding state rule of evidence in\n\nMaine, where this diversity suit was brought. The District Court\n\nwas doing nothing other than following the ordinary practice of\n\nfederal courts to apply the Federal Rules of Evidence in diversity\n\ncases. See Downey v. Bob's Discount Furniture Holdings, Inc., 633\n\nF.3d 1, 8 (1st Cir. 2011).\n\n Of course, we leave open the possibility that there could\n\nbe instances in which the State rule counts as a \"substantive\"\n\nrule that must be applied under the doctrine of Erie Railroad Co.\n\nv. Tompkins, 304 U.S. 64 (1938). See McInnis v. A.M.F., Inc., 765\n\nF.2d 240, 245 (1st Cir. 1985). But this is no such case, given\n\nthat Federal Rule 803(6) \"endeavor[s] to reach almost identical\n\n\n - 9 -\n\fresults\" as its Maine counterpart. Id. While Federal Rule 803(6)\n\nand Maine Rule 803(6) were not entire facsimiles of one another at\n\nthe time the District Court decided this case, an authoritative\n\ntreatise on Maine evidence had noted that the State and Federal\n\nversions of the rule were \"substantively the same,\" Richard H.\n\nField & Peter L. Murray, Maine Evidence 417 (4th ed. 1997), and\n\nthe State has recently revised its Rule 803(6) so that its text is\n\nnow identical to the Federal Rule, Me. R. Evid. 803(6) advisory\n\ncommittee's note to August 2018 amendment (amending the Maine Rule\n\n\"to follow a corresponding 2014 amendment\" to the Federal Rule).\n\nMaine cases also take the same basic approach as our cases do:\n\nMaine permits the admission of integrated business records if the\n\nevidence \"demonstrate[s] the reliability and trustworthiness of\n\nthe information.\" Beneficial Me. Inc. v. Carter, 25 A.3d 96, 102\n\n(Me. 2011).1 Because there is no material conflict between the\n\nMaine Rule and the Federal Rule, there is no ground for requiring\n\nthe Maine Rule to be applied in this case.\n\n\n\n 1 Jones alleges that two recent decisions of the Supreme\nJudicial Court of Maine reject an integrated business records\nexception. See KeyBank Nat'l Ass'n v. Estate of Quint, 176 A.3d\n717, 721-722 (Me. 2017); Deutsche Bank Nat'l Tr. Co. v. Eddins,\n182 A.3d 1241, 1244-45 (Me. 2018). But both decisions rely on\nCarter and explicitly acknowledge that integrated business records\nmay be admitted into evidence. KeyBank, 176 A.3d at 721; Deutsche\nBank, 182 A.3d at 1244. Even if these Maine cases are not identical\nto our cases in all of their particulars, they follow the same\ncase-by-case reliability approach to the admissibility of\nintegrated business records. See Carter, 25 A.3d at 101.\n\n\n - 10 -\n\f In sum, we reject Jones's challenge under Rule 803(6) to\n\nthe District Court's admission of Exhibit 8. We do so, however,\n\nwhile acknowledging that the business records of loan servicers\n\nmay not always carry the requisite indicia of reliability. See,\n\ne.g., Brief for National Consumer Law Center and Jerome N. Frank\n\nLegal Services Organization as Amici Curiae 12-18. It therefore\n\nbears repeating: the admission of integrated business records in\n\nthis context must turn, as it does here, on the particular facts\n\nof each case.\n\n B\n\n Jones also claims that the District Court's admission of\n\nExhibit 8 violated Federal Rules of Evidence 901, 1001, and 1002.\n\nRule 901(a) provides that \"the proponent must produce evidence\n\nsufficient to support a finding that the item is what the proponent\n\nclaims it is.\" The related Rule 1002 requires \"[a]n original\n\nwriting, recording, or photograph . . . in order to prove its\n\ncontent unless these rules or a federal statute provides\n\notherwise,\" while Rule 1001(d) includes the provision that for\n\n\"electronically stored information,\" an \"original\" is \"any\n\nprintout . . . if it accurately reflects the information.\"\n\n The District Court did not abuse its discretion in\n\nconcluding that Exhibit 8 satisfied these rules. Lopez testified\n\nthat she \"reviewed personally the records in this particular case\"\n\nand \"found them to be accurate,\" Trial Tr. 28:9-13, and\n\n\n - 11 -\n\fspecifically attested that Exhibit 8 was \"an account summary and\n\npayment history\" printed from Caliber's records. Trial Tr. 25:19-\n\n26:15. That testimony is sufficient to \"support a finding\" that\n\nExhibit 8 \"is what the proponent claims it is,\" as Rule 901(a)\n\nrequires, and it also suffices to support a finding that Exhibit\n\n8 is a \"printout\" that \"accurately reflects\" the data in Caliber's\n\ndatabase and is thus an \"original writing,\" as Rules 1001(d) and\n\n1002 require.\n\n Jones argues that Lopez's testimony was inadequate\n\nbecause it did not supply \"[e]vidence describing a process or\n\nsystem and showing that it produces an accurate result,\" as is\n\ncontemplated by Rule 901(b)(9). But Rule 901(b)(9) offers just\n\none illustrative \"example[] . . . of evidence that satisfies the\n\nrequirement\" of Rule 901(a), and a proponent may satisfy Rule\n\n901(a) by other means. Fed. R. Evid. 901(b). Thus, even in the\n\nabsence of expert testimony regarding the accuracy of the process,\n\nwe have held that the testimony of \"someone knowledgeable, trained,\n\nand experienced in analyzing\" the program's results may show that\n\n\"the item is what the proponent claims it is,\" as Rule 901(a)\n\nrequires. United States v. Espinal-Almeida, 699 F.3d 588, 612-\n\n613 (1st Cir. 2012). Here, Lopez's testimony amply demonstrates\n\nthat she was \"knowledgeable, trained, and experienced\" in\n\nanalyzing Caliber's records. Id.; see Trial Tr. 32:1-33:11. And\n\nher testimony indicated that Exhibit 8 is an accurate printout\n\n\n - 12 -\n\ffrom Caliber's database. Trial Tr. 25:19-26:15. There was no\n\nabuse of the District Court's discretion in admitting Exhibit 8.\n\n II\n\n There is one final matter of housekeeping. Jones claims\n\nthat the District Court erred by awarding U.S. Bank approximately\n\n$23,000 in charges for escrow, title fees, and inspections that\n\nwere not recoverable under the terms of her promissory note.\n\nBecause she did not raise that claim in the District Court, our\n\nreview is for plain error. Blockel v. J.C. Penney Co., 337 F.3d\n\n17, 25 (1st Cir. 2003). Jones's note permits recovery for \"costs\n\nand expenses in enforcing this Note to the extent not prohibited\n\nby applicable law.\" Note 6(E). Amounts owed for escrow, title\n\nfees, and inspections qualify as \"costs and expenses\" incurred in\n\n\"enforcing this Note,\" for they stem from U.S. Bank's efforts to\n\nmaintain the property securing the note, and they likely would not\n\nhave been incurred absent Jones's breach. Jones has not identified\n\nany contrary evidence demonstrating that the award of these charges\n\nwas error, plain or otherwise.\n\n\n\nAffirmed.\n\n\n\n\n - 13 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, Appellee, v. Julia L. JONES, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1719\\n U.S. BANK TRUST, N.A.,\\n as Trustee for LSF9 Master Participation Trust,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n JULIA L. JONES,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. John A. Woodcock, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,\\n and Stahl, Circuit Judge.\\n\\n\\n Thomas A. Cox for appellant.\\n Matthew A. Fitzgerald, with whom Ashley P. Peterson was on\\nbrief, for appellee.\\n Michael A.F. Johnson and Dirk C. Phillips on brief for Federal\\nHousing Finance Agency, amicus curiae.\\n Stuart Rossman, Geoff Walsh, J.L. Pottenger, Jr., and Jeffrey\\nGentes on brief for National Consumer Law Center and Jerome N.\\nFrank Legal Services Organization, amici curiae.\\n Frank D’Alessandro and Jonathan E. Selkowitz on brief for\\nPine Tree Legal Assistance, Inc., amicus curiae.\\n\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\fMay 30, 2019\\n\\n\\n\\n\\n - 2 -\\n\\f SOUTER, Associate Justice. In this diversity case,\\n\\nappellee U.S. Bank Trust, N.A., sued appellant Julia Jones for\\n\\nbreach of contract and breach of promissory note, among other\\n\\nclaims, after Jones stopped making payments due to U.S. Bank on\\n\\nher mortgage loan. At trial, U.S. Bank sought to establish the\\n\\ntotal amount owed on the loan account by introducing a computer\\n\\nprintout, marked as Exhibit 8, that contained an account summary\\n\\nand a list of transactions related to the loan. The District Court\\n\\nadmitted Exhibit 8 into evidence and relied on it in granting\\n\\njudgment to U.S. Bank in the amount of $226,458.28. We affirm.\\n\\n I\\n\\n Jones argues on appeal that admitting Exhibit 8 violated\\n\\nthe Federal Rules of Evidence. \\\"We review the district court's\\n\\ninterpretation of the Federal Rules of Evidence de novo, but its\\n\\napplication of those Rules for abuse of discretion.\\\" Bradley v.\\n\\nSugarbaker, 891 F.3d 29, 33 (1st Cir. 2018). \\\"[T]his court will\\n\\nnot substitute its judgment\\\" in a discretionary evidentiary ruling\\n\\n\\\"for that of the district court unless left with a definite and\\n\\nfirm conviction that the court below committed a clear error of\\n\\njudgment.\\\" Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir.\\n\\n2018) (quoting Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir.\\n\\n2016) (internal quotation marks omitted)).\\n\\n\\n\\n\\n - 3 -\\n\\f A\\n\\n Rule 803(6), known as the business records exception,\\n\\nauthorizes the admission of certain documents under an exception\\n\\nto the usual prohibition against the admission of hearsay\\n\\nstatements, that is, statements by an out-of-court declarant\\n\\noffered into evidence to prove the truth of the matter asserted.\\n\\nFed. R. Evid. 801(c), 802. Rule 803(6) provides that \\\"[a] record\\n\\nof an act, event, condition, opinion, or diagnosis\\\" is \\\"not\\n\\nexcluded by the rule against hearsay\\\" if:\\n\\n \\\"(A) the record was made at or near the time\\n by-or from information transmitted by—someone\\n with knowledge;\\n (B) the record was kept in the course of a\\n regularly conducted activity of a business,\\n organization, occupation, or calling, whether\\n or not for profit;\\n (C) making the record was a regular practice\\n of that activity;\\n (D) all these conditions are shown by the\\n testimony of the custodian or another\\n qualified witness, or by a certification that\\n complies with Rule 902(11) or (12) or with a\\n statute permitting certification; and\\n (E) the opponent does not show that the\\n source of information or the method or\\n circumstances of preparation indicate a lack\\n of trustworthiness.\\\"\\n\\n Jones says that Exhibit 8 does not meet the requirements\\n\\nof this rule because of the nature of the information the Exhibit\\n\\ncontains or is said to rest upon. Exhibit 8 is a summary of\\n\\nJones's account as a mortgage borrower, and, in particular, of the\\n\\ntransactions the mortgage history comprises, that is maintained by\\n\\n\\n\\n - 4 -\\n\\fthe current independent servicer of Jones's account, Caliber Home\\n\\nLoans, Inc. Critically, however, this record is a product of\\n\\nrecords of some transactions that took place before Caliber became\\n\\nservicer of Jones's account. The prior entries were created by\\n\\ntwo other loan servicers, Seterus and Bank of America, and were\\n\\nintegrated into Caliber's database when Caliber succeeded them as\\n\\nservicer. According to Jones, these integrated business records\\n\\nfrom the prior servicers preclude admission of Exhibit 8 under the\\n\\nquoted rule unless supported by testimony of a custodian or\\n\\nqualified witness with personal knowledge of the record keeping of\\n\\nthe respective prior servicers.\\n\\n But there is no categorical rule barring the admission\\n\\nof integrated business records under Rule 803(6) based only on the\\n\\ntestimony from a representative of the successor business.\\n\\n\\\"[W]hether a third party's records . . . can be integrated into\\n\\nthe records of the offering entity . . . for purposes of admission\\n\\nunder the business records exception is not an issue upon which\\n\\nthis circuit has reached a uniform conclusion\\\" covering every\\n\\ninstance. United States v. Savarese, 686 F.3d 1, 12 (1st Cir.\\n\\n2012). Rather, the admissibility of the evidence turns on the\\n\\nfacts of each case.\\n\\n Thus, we have affirmed the admission of business records\\n\\ncontaining third-party entries without third-party testimony where\\n\\nthe entries were \\\"intimately integrated\\\" into the business\\n\\n\\n - 5 -\\n\\frecords, FTC v. Direct Marketing Concepts, Inc., 624 F.3d 1, 16\\n\\nn.15 (1st Cir. 2010), or where the party that produced the business\\n\\nrecords \\\"relied on the [third-party] document and documents such\\n\\nas those[] in his business,\\\" United States v. Doe, 960 F.2d 221,\\n\\n223 (1st Cir. 1992) (internal quotation marks omitted).\\n\\nConversely, in the absence of third-party evidence, we have\\n\\nrejected the admission of business records containing or relying\\n\\non the accuracy of third-party information integrated into the\\n\\nlater record where, for example, the later business did not \\\"use[]\\n\\na procedure for verifying\\\" such information, lacked a \\\"self-\\n\\ninterest in assuring the accuracy of the outside information,\\\"\\n\\nUnited States v. Vigneau, 187 F.3d 70, 77 & n.6 (1st Cir. 1999)\\n\\n(emphasis omitted), or sought admission of third-party statements\\n\\nmade \\\"by a stranger to it,\\\" Bradley, 891 F.3d at 35 (quoting\\n\\nVigneau, 187 F.3d at 75 (alterations omitted)). The key question\\n\\nis whether the records in question are \\\"reliable enough to be\\n\\nadmissible.\\\" Direct Marketing Concepts, 624 F.3d at 16 n.15.\\n\\n In answering that question, we are mindful that the\\n\\n\\\"reliability of business records is said variously to be supplied\\n\\nby systematic checking, by regularity and continuity which produce\\n\\nhabits of precision, by actual experience of business in relying\\n\\nupon them, or by a duty to make an accurate record as part of a\\n\\ncontinuing job or occupation.\\\" Fed. R. Evid. 803 advisory\\n\\ncommittee's note to 1972 proposed rules. The rule seeks \\\"to\\n\\n\\n - 6 -\\n\\fcapture these factors and to extend their impact\\\" by applying them\\n\\nto a \\\"regularly conducted activity.\\\" Id.\\n\\n Based on the facts presented here, we cannot say that\\n\\nthe District Court abused its discretion in finding Exhibit 8 with\\n\\nits integrated elements reliable enough to admit under Rule 803(6).\\n\\nFacts in the record, including testimony provided by an employee\\n\\nof Caliber, Letycia Lopez, establish that the servicer relied on\\n\\nthe accuracy of the mortgage history and took measures to verify\\n\\nthe same. As the District Court explained, Lopez testified that\\n\\nCaliber incorporated the previous servicer's records into its own\\n\\ndatabase and \\\"plac[ed] its own financial interest at stake by\\n\\nrelying on those records,\\\" and that \\\"Caliber's acquisition\\n\\ndepartment took steps to review the previous servicer's records in\\n\\na way that assured itself of the accuracy of the records.\\\" 330 F.\\n\\nSupp. 3d 530, 543 (D. Me. 2018); see Trial Tr. 28:3-6, 60:17-19.\\n\\nThe District Court also soundly noted that Jones did not \\\"dispute\\n\\nthe transaction history by claiming overbilling or unrecorded\\n\\npayments,\\\" as she surely could have done if the records were\\n\\ninaccurate. 330 F. Supp. 3d at 544; see Fed. R. Evid. 803(6)(E).\\n\\nNor has Jones contested the District Court's conclusion that the\\n\\ndata revealed \\\"no discrepancies\\\" giving rise to doubt that the\\n\\nbusiness records were trustworthy. 330 F. Supp. 3d at 541; see\\n\\nid. at 544.\\n\\n\\n\\n\\n - 7 -\\n\\f Jones seeks to eliminate the significance of the\\n\\ntestimony from Lopez by arguing that she was not a \\\"qualified\\n\\nwitness\\\" within the meaning of subsection (D) of Rule 803(6).\\n\\nAccording to Jones, Lopez was not personally involved in the\\n\\ncreation of Caliber's records and lacked knowledge about how prior\\n\\nloan servicers maintained their records. But a \\\"qualified witness\\\"\\n\\n\\\"need not be the person who actually prepared the record.\\\" Wallace\\n\\nMotor Sales, Inc. v. Am. Motors Sales Corp., 780 F.2d 1049, 1061\\n\\n(1st Cir. 1985). Rather, a \\\"qualified witness\\\" is \\\"simply one who\\n\\ncan explain and be cross-examined concerning the manner in which\\n\\nthe records are made and kept.\\\" Id. Here, Lopez provided detailed\\n\\ntestimony regarding how Caliber maintained its records, Trial Tr.\\n\\n8-13, and how it verified the accuracy of the records it got from\\n\\nother servicers, id. at 26:22-28:16. Lopez therefore was\\n\\n\\\"qualified\\\" within the meaning of Rule 803(6).\\n\\n Jones not only fails to eliminate Lopez's competence as\\n\\na witness, but she also fails to discredit the substance of Lopez's\\n\\ntestimony that the incorporated records were reliable owing to the\\n\\nvery fact that Caliber put its financial interest at stake by\\n\\nrelying on them. Jones claims that any reliance is of little, if\\n\\nany, evidentiary worth, simply because Caliber is a contractor\\n\\nthat services the mortgage account, not the holder of the note.\\n\\nAccording to Jones, if the incorporated information turns out to\\n\\nbe unreliable so as to defeat any action to collect the balance\\n\\n\\n - 8 -\\n\\fCaliber says is due, the loser will be U.S. Bank, not Caliber.\\n\\nBut this is simply unrealistic. If Caliber is shown to be claiming\\n\\nunsupportable facts about an account's history, to the financial\\n\\ndetriment of U.S. Bank as assigned payee of a mortgagor's note,\\n\\nCaliber's business with U.S. Bank will suffer accordingly, as will\\n\\nits appeal in the eyes of other note holders who contract or might\\n\\ncontract with Caliber for its services. Since Jones gives us no\\n\\nsufficient reason to refuse to apply the evidence of reliance here,\\n\\nwe treat it as we did in Doe, 960 F.2d at 223, as evidence of\\n\\nincorporation's reliability.\\n\\n Nor are we persuaded by Jones's fallback argument that\\n\\nit was error to interpret Federal Rule 803(6) in a manner\\n\\ninconsistent with the corresponding state rule of evidence in\\n\\nMaine, where this diversity suit was brought. The District Court\\n\\nwas doing nothing other than following the ordinary practice of\\n\\nfederal courts to apply the Federal Rules of Evidence in diversity\\n\\ncases. See Downey v. Bob's Discount Furniture Holdings, Inc., 633\\n\\nF.3d 1, 8 (1st Cir. 2011).\\n\\n Of course, we leave open the possibility that there could\\n\\nbe instances in which the State rule counts as a \\\"substantive\\\"\\n\\nrule that must be applied under the doctrine of Erie Railroad Co.\\n\\nv. Tompkins, 304 U.S. 64 (1938). See McInnis v. A.M.F., Inc., 765\\n\\nF.2d 240, 245 (1st Cir. 1985). But this is no such case, given\\n\\nthat Federal Rule 803(6) \\\"endeavor[s] to reach almost identical\\n\\n\\n - 9 -\\n\\fresults\\\" as its Maine counterpart. Id. While Federal Rule 803(6)\\n\\nand Maine Rule 803(6) were not entire facsimiles of one another at\\n\\nthe time the District Court decided this case, an authoritative\\n\\ntreatise on Maine evidence had noted that the State and Federal\\n\\nversions of the rule were \\\"substantively the same,\\\" Richard H.\\n\\nField & Peter L. Murray, Maine Evidence 417 (4th ed. 1997), and\\n\\nthe State has recently revised its Rule 803(6) so that its text is\\n\\nnow identical to the Federal Rule, Me. R. Evid. 803(6) advisory\\n\\ncommittee's note to August 2018 amendment (amending the Maine Rule\\n\\n\\\"to follow a corresponding 2014 amendment\\\" to the Federal Rule).\\n\\nMaine cases also take the same basic approach as our cases do:\\n\\nMaine permits the admission of integrated business records if the\\n\\nevidence \\\"demonstrate[s] the reliability and trustworthiness of\\n\\nthe information.\\\" Beneficial Me. Inc. v. Carter, 25 A.3d 96, 102\\n\\n(Me. 2011).1 Because there is no material conflict between the\\n\\nMaine Rule and the Federal Rule, there is no ground for requiring\\n\\nthe Maine Rule to be applied in this case.\\n\\n\\n\\n 1 Jones alleges that two recent decisions of the Supreme\\nJudicial Court of Maine reject an integrated business records\\nexception. See KeyBank Nat'l Ass'n v. Estate of Quint, 176 A.3d\\n717, 721-722 (Me. 2017); Deutsche Bank Nat'l Tr. Co. v. Eddins,\\n182 A.3d 1241, 1244-45 (Me. 2018). But both decisions rely on\\nCarter and explicitly acknowledge that integrated business records\\nmay be admitted into evidence. KeyBank, 176 A.3d at 721; Deutsche\\nBank, 182 A.3d at 1244. Even if these Maine cases are not identical\\nto our cases in all of their particulars, they follow the same\\ncase-by-case reliability approach to the admissibility of\\nintegrated business records. See Carter, 25 A.3d at 101.\\n\\n\\n - 10 -\\n\\f In sum, we reject Jones's challenge under Rule 803(6) to\\n\\nthe District Court's admission of Exhibit 8. We do so, however,\\n\\nwhile acknowledging that the business records of loan servicers\\n\\nmay not always carry the requisite indicia of reliability. See,\\n\\ne.g., Brief for National Consumer Law Center and Jerome N. Frank\\n\\nLegal Services Organization as Amici Curiae 12-18. It therefore\\n\\nbears repeating: the admission of integrated business records in\\n\\nthis context must turn, as it does here, on the particular facts\\n\\nof each case.\\n\\n B\\n\\n Jones also claims that the District Court's admission of\\n\\nExhibit 8 violated Federal Rules of Evidence 901, 1001, and 1002.\\n\\nRule 901(a) provides that \\\"the proponent must produce evidence\\n\\nsufficient to support a finding that the item is what the proponent\\n\\nclaims it is.\\\" The related Rule 1002 requires \\\"[a]n original\\n\\nwriting, recording, or photograph . . . in order to prove its\\n\\ncontent unless these rules or a federal statute provides\\n\\notherwise,\\\" while Rule 1001(d) includes the provision that for\\n\\n\\\"electronically stored information,\\\" an \\\"original\\\" is \\\"any\\n\\nprintout . . . if it accurately reflects the information.\\\"\\n\\n The District Court did not abuse its discretion in\\n\\nconcluding that Exhibit 8 satisfied these rules. Lopez testified\\n\\nthat she \\\"reviewed personally the records in this particular case\\\"\\n\\nand \\\"found them to be accurate,\\\" Trial Tr. 28:9-13, and\\n\\n\\n - 11 -\\n\\fspecifically attested that Exhibit 8 was \\\"an account summary and\\n\\npayment history\\\" printed from Caliber's records. Trial Tr. 25:19-\\n\\n26:15. That testimony is sufficient to \\\"support a finding\\\" that\\n\\nExhibit 8 \\\"is what the proponent claims it is,\\\" as Rule 901(a)\\n\\nrequires, and it also suffices to support a finding that Exhibit\\n\\n8 is a \\\"printout\\\" that \\\"accurately reflects\\\" the data in Caliber's\\n\\ndatabase and is thus an \\\"original writing,\\\" as Rules 1001(d) and\\n\\n1002 require.\\n\\n Jones argues that Lopez's testimony was inadequate\\n\\nbecause it did not supply \\\"[e]vidence describing a process or\\n\\nsystem and showing that it produces an accurate result,\\\" as is\\n\\ncontemplated by Rule 901(b)(9). But Rule 901(b)(9) offers just\\n\\none illustrative \\\"example[] . . . of evidence that satisfies the\\n\\nrequirement\\\" of Rule 901(a), and a proponent may satisfy Rule\\n\\n901(a) by other means. Fed. R. Evid. 901(b). Thus, even in the\\n\\nabsence of expert testimony regarding the accuracy of the process,\\n\\nwe have held that the testimony of \\\"someone knowledgeable, trained,\\n\\nand experienced in analyzing\\\" the program's results may show that\\n\\n\\\"the item is what the proponent claims it is,\\\" as Rule 901(a)\\n\\nrequires. United States v. Espinal-Almeida, 699 F.3d 588, 612-\\n\\n613 (1st Cir. 2012). Here, Lopez's testimony amply demonstrates\\n\\nthat she was \\\"knowledgeable, trained, and experienced\\\" in\\n\\nanalyzing Caliber's records. Id.; see Trial Tr. 32:1-33:11. And\\n\\nher testimony indicated that Exhibit 8 is an accurate printout\\n\\n\\n - 12 -\\n\\ffrom Caliber's database. Trial Tr. 25:19-26:15. There was no\\n\\nabuse of the District Court's discretion in admitting Exhibit 8.\\n\\n II\\n\\n There is one final matter of housekeeping. Jones claims\\n\\nthat the District Court erred by awarding U.S. Bank approximately\\n\\n$23,000 in charges for escrow, title fees, and inspections that\\n\\nwere not recoverable under the terms of her promissory note.\\n\\nBecause she did not raise that claim in the District Court, our\\n\\nreview is for plain error. Blockel v. J.C. Penney Co., 337 F.3d\\n\\n17, 25 (1st Cir. 2003). Jones's note permits recovery for \\\"costs\\n\\nand expenses in enforcing this Note to the extent not prohibited\\n\\nby applicable law.\\\" Note 6(E). Amounts owed for escrow, title\\n\\nfees, and inspections qualify as \\\"costs and expenses\\\" incurred in\\n\\n\\\"enforcing this Note,\\\" for they stem from U.S. Bank's efforts to\\n\\nmaintain the property securing the note, and they likely would not\\n\\nhave been incurred absent Jones's breach. Jones has not identified\\n\\nany contrary evidence demonstrating that the award of these charges\\n\\nwas error, plain or otherwise.\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n - 13 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1975,"cells":{"id":{"kind":"number","value":4625333,"string":"4,625,333"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Powell"},"decision_date":{"kind":"string","value":"2019-05-31"},"docket_number":{"kind":"string","value":"17-1683P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Torruella, Kayatta, and Barron, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1683\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n BRIAN POWELL,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Paul J. Barbadoro, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Jeffrey W. Langholtz for appellant.\\n Seth R. Aframe, Assistant United States Attorney, with whom\\nJohn J. Farley, Acting United States Attorney, was on brief, for\\nappellee.\\n\\n\\n July 16, 2018\\n\\f BARRON, Circuit Judge. Brian Powell appeals his\\n\\nconviction based on his guilty plea for production of child\\n\\npornography in violation of 18 U.S.C. § 2251(a). Because we see\\n\\nno error in the District Court's ruling denying his motion to\\n\\nwithdraw his guilty plea, we affirm the conviction.\\n\\n I.\\n\\n On April 19, 2016, the government filed a one-count\\n\\ninformation against Brian Powell, alleging that he had produced\\n\\nchild pornography in violation of 18 U.S.C. § 2251(a). On May 2,\\n\\n2016, Powell pleaded guilty to that count. At the plea hearing,\\n\\nthe government offered the following facts in support of the\\n\\ncharge.\\n\\n Omegle is a chat website that allows users to see each\\n\\nother and \\\"chat\\\" using their computers' video cameras and through\\n\\ninstant messaging. In July 2015, Powell used Omegle to produce\\n\\nchild pornography by initiating sexually explicit video-chats with\\n\\nminors1 and recording a number of video chats as they appeared on\\n\\n\\n\\n 1 The District Court noted that the government had not adduced\\nevidence demonstrating that at least one individual depicted in\\nthe screenshots was a minor, because the individual was not\\nidentified. The Court then confirmed with Powell's counsel that\\nhe had \\\"reviewed this issue with [Powell] and [was] satisfied . .\\n. [that Powell] understands that the government would have to prove\\nthat this was a minor child and he is not prepared to contest the\\ngovernment's contention on that point[.]\\\" Powell's counsel then\\nconfirmed that he had spent \\\"as much time as [he] needed with the\\nforensic detective\\\" reviewing the images and discussed the matter\\nwith Powell in discussing his decision whether to plead guilty.\\n\\n\\n - 2 -\\n\\fhis screen. He then stored those recordings on his personal\\n\\ncomputer.\\n\\n Before taking Powell's plea, the District Court engaged\\n\\nhim in a colloquy pursuant to Rule 11 of the Federal Rules of\\n\\nCriminal Procedure in which, among other things, he was asked if\\n\\nhe \\\"disagree[d] with anything that [the prosecutor] ha[d] said,\\\"\\n\\nand Powell confirmed that he did not. See Fed. R. Crim. P. 11.\\n\\nThe District Court also confirmed that Powell understood the\\n\\npotential sentence that he was facing and how that sentence would\\n\\nbe calculated. Powell was next asked if he was \\\"satisfied with\\n\\nthe legal advice [he had] received from [his] attorney,\\\" to which\\n\\nPowell responded that he was. The District Court also asked\\n\\nPowell's attorney if \\\"to [his] knowledge, is [Powell] pleading\\n\\nguilty because of any illegally obtained evidence in the\\n\\ngovernment's possession?\\\" Powell's attorney replied that he \\\"did\\n\\nnot believe\\\" so. At the end of the colloquy, the District Court\\n\\naccepted Powell's guilty plea.\\n\\n Nevertheless, many months later, on February 17, 2017,\\n\\nPowell filed a motion to withdraw his guilty plea. He alleged in\\n\\nthat motion that his Fourth Amendment rights had been violated\\n\\nbecause Omegle had forwarded screenshots it had collected of\\n\\nPowell's chat sessions and the IP address used for them to the\\n\\nNational Center for Missing and Exploited Children (NCMEC), which\\n\\nhad then viewed those screenshots and forwarded the IP address and\\n\\n\\n - 3 -\\n\\fthe screenshots to law enforcement. Powell argued that his\\n\\ncounsel, in advising him with respect to the guilty plea, had\\n\\nprovided him with ineffective assistance of counsel in violation\\n\\nof his Sixth Amendment right to counsel, see Strickland v.\\n\\nWashington, 466 U.S. 668, 697 (1984), by not having moved pursuant\\n\\nto the Fourth Amendment to suppress the evidence that Omegle had\\n\\nsent to NCMEC.\\n\\n The District Court acknowledged that Powell would be\\n\\nentitled to withdraw his guilty plea if his counsel had failed to\\n\\nfile a meritorious suppression motion, and so it held a hearing to\\n\\naddress the potential merits of any such motion. At that hearing,\\n\\nthe District Court adduced the following undisputed facts.\\n\\n Powell's solicitation of child pornography was picked up\\n\\nthrough Omegle's systematic review process. In this process,\\n\\nOmegle automatically records periodic screenshots of users' video\\n\\nchats. Omegle employees then review these records and forward\\n\\nimages that employees suspect of being child pornography to NCMEC,\\n\\nan entity that \\\"is statutorily obliged to maintain an electronic\\n\\ntip line . . . to report possible Internet child sexual\\n\\nexploitation violations to the government.\\\" United States v.\\n\\nAckerman, 831 F.3d 1292, 1296 (10th Cir. 2016), reh'g denied (Oct.\\n\\n4, 2016). NCMEC employees then view the images and run the\\n\\ncorresponding IP addresses through a publicly-available system to\\n\\n\\n\\n\\n - 4 -\\n\\fidentify the source's geographic location. NCMEC then passes those\\n\\nimages and the IP address on to law enforcement.\\n\\n Omegle followed this process in this case. During\\n\\nPowell's online interactions, Omegle automatically took\\n\\nscreenshots. Omegle staff then reviewed these screenshots, along\\n\\nwith information about Powell's IP address and webcam. An Omegle\\n\\nemployee identified the screenshots as containing possible child\\n\\npornography. Omegle submitted the screenshots and computer and\\n\\nwebcam information to NCMEC. NCMEC reviewed those screenshots and\\n\\ndetermined that they contained child pornography. NCMEC also\\n\\nidentified Powell's geographic area based on his IP address. NCMEC\\n\\nforwarded the screenshots and IP information to law enforcement.\\n\\n On these facts, the District Court denied Powell's\\n\\nmotion on May 25, 2017, because it found that the only information\\n\\nthat NCMEC obtained from Omegle was information that Omegle had\\n\\nviewed through its own independent searches prior to providing\\n\\nthat information to NCMEC. It thus concluded that NCMEC had not\\n\\nviolated Powell's Fourth Amendment rights. Powell now brings this\\n\\nappeal from that ruling.\\n\\n II.\\n\\n Our review of \\\"a district court's denial of a motion to\\n\\nwithdraw [a guilty plea is] for abuse of discretion.\\\" United\\n\\nStates v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016). In making\\n\\nthat assessment, we consider \\\"the strength of the reasons offered\\n\\n\\n - 5 -\\n\\fin support of the motion,\\\" United States v. Isom, 580 F.3d 43, 52\\n\\n(1st Cir. 2009), recognizing that the motion should be permitted\\n\\n\\\"if the defendant offers 'a fair and just reason'\\\" for the motion.\\n\\nUnited States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006) (quoting\\n\\nFed. R Crim. P. 11(d)(2)(B)). In determining whether the defendant\\n\\noffered such a \\\"fair and just reason,\\\" our review of the District\\n\\nCourt's legal conclusions in denying a motion to withdraw is de\\n\\nnovo. United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013).\\n\\n We have explained that when a defendant seeks to withdraw\\n\\na guilty plea based on a claim of ineffective assistance of counsel\\n\\nunder the Sixth Amendment, that defendant must make two showings.\\n\\nFirst, he must demonstrate \\\"that counsel's representation 'fell\\n\\nbelow an objective level of reasonableness.'\\\" United States v.\\n\\nPellerito, 878 F.2d 1535, 1538 (1st Cir. 1989) (quoting Hill v.\\n\\nLockhart, 474 U.S. 52, 57–59 (1985)). Second, he must show that\\n\\nthe \\\"counsel's deficient performance resulted in prejudice -- that\\n\\nis, 'that there is a reasonable probability that, but for counsel's\\n\\nunprofessional errors, the result of the proceeding would have\\n\\nbeen different.'\\\" United States v. Mercedes-De La Cruz, 787 F.3d\\n\\n61, 67 (1st Cir. 2015) (quoting Strickland v. Washington, 466 U.S.\\n\\n668, 694 (1984)).\\n\\n Powell agrees that, in accord with these requirements,\\n\\nhe can succeed on his challenge to the denial of his motion to\\n\\nwithdraw his guilty plea only by showing that the motion to\\n\\n\\n - 6 -\\n\\fsuppress that he contends that his counsel should have filed would\\n\\nhave been meritorious. Mercedes-De La Cruz, 787 F.3d at 67.2 But,\\n\\nfor the reasons that we now explain, we conclude that he has failed\\n\\nto show that it would have been.\\n\\n The Fourth Amendment provides that the \\\"right of the\\n\\npeople to be secure in their persons, houses, papers and effects,\\n\\nagainst unreasonable searches and seizures, shall not be\\n\\nviolated.\\\" U.S. Const. amend. IV. This protection applies when\\n\\n\\\"the person invoking its protection can claim a . . . 'legitimate\\n\\nexpectation of privacy' that has been invaded by government\\n\\naction.\\\" Smith v. Maryland, 442 U.S. 735, 740 (1979).\\n\\n The parties do not dispute that Powell had a reasonable\\n\\nexpectation of privacy in the screenshots of his Omegle video chat\\n\\nconversations. They also do not dispute that Omegle, under our\\n\\nprecedent, was not acting as a governmental entity or agent, United\\n\\nStates v. Cameron, 699 F.3d 621 (1st Cir. 2012). Nor do they\\n\\ndispute that, for all relevant purposes, NCMEC was. What they do\\n\\n\\n\\n\\n 2 Powell also gestures at an argument that his counsel's\\nperformance was ineffective because, relying on United States v.\\nCavitt, 550 F.3d 430, 441 (5th Cir. 2008), Powell's counsel did\\nnot provide him with the opportunity to adequately review discovery\\nbefore he accepted a guilty plea. However, even were this argument\\nnot waived for lack of development, see United States v. Zannino,\\n895 F.2d 1, 17 (1st Cir. 1990), he clarified at oral argument that\\nhis ineffective assistance of counsel argument was not based on\\ninadequate access to discovery, but rather solely the failure to\\nfile a suppression motion that would have been successful. We\\nthus do not need to address that argument here.\\n\\n\\n - 7 -\\n\\fdispute is whether NCMEC's warrantless viewing of the screenshots\\n\\nand its review of the other related information that Omegle had\\n\\nsent to NCMEC requires the suppression of that evidence.\\n\\n Powell contends, pursuant to what is known as the private\\n\\nsearch doctrine, that a motion to suppress that evidence would\\n\\nhave been successful. The private search doctrine provides that,\\n\\nif a private actor (such as Omegle) searches evidence in which an\\n\\nindividual has a reasonable expectation of privacy, and then\\n\\nprovides that evidence to law enforcement or its agent (such as,\\n\\nin this case, NCMEC), \\\"[t]he additional invasions of [the\\n\\nindividual's] privacy by the government agent must be tested by\\n\\nthe degree to which they exceeded the scope of the private search.\\\"\\n\\nUnited States v. Jacobsen, 466 U.S. 109, 115 (1984).\\n\\n Under this doctrine, there is no Fourth Amendment\\n\\nviolation if the search by law enforcement or its agent is\\n\\ncoextensive with the scope of the private actor's private search\\n\\nand there is \\\"a virtual certainty that nothing else of\\n\\nsignificance\\\" could be revealed by the governmental search. Id.\\n\\nat 119; accord Ackerman, 831 F.3d at 1306. But if, instead, that\\n\\nsearch \\\"exceed[s] the scope of the private search,\\\" then the\\n\\ngovernment must have \\\"the right to make an independent search\\\"\\n\\nunder the Fourth Amendment in order for that search to comport\\n\\nwith the Constitution. Jacobsen, 466 U.S. at 116.\\n\\n\\n\\n\\n - 8 -\\n\\f Powell argues that NCMEC's search of the screenshots\\n\\nexceeded the scope of Omegle's private search, and he relies for\\n\\nthat contention on the Tenth Circuit's decision in United States\\n\\nv. Ackerman, 831 F.3d 1292 (10th Cir. 2016). But that case does\\n\\nnot help him.\\n\\n In Ackerman, the defendant's internet service provider\\n\\n(ISP) employed an \\\"automated filter designed to thwart the\\n\\ntransmission of child pornography\\\" through the use of \\\"hash value\\n\\nmatching.\\\" Ackerman, 831 F.3d at 1294. \\\"A hash value is (usually)\\n\\na short string of characters generated from a much larger string\\n\\nof data (say, an electronic image) using an algorithm -- and\\n\\ncalculated in a way that makes it highly unlikely another set of\\n\\ndata will produce the same value.\\\" Id. Ackerman's ISP's hash\\n\\nvalue matching protocol identified an attachment to Ackerman's\\n\\nemail as potentially child pornography and automatically forwarded\\n\\nthat email and its attachments to NCMEC. Id. NCMEC employees\\n\\nthen viewed Ackerman's email and attachments before passing this\\n\\nmaterial on to law enforcement. Id.\\n\\n The Tenth Circuit, on the understanding that Ackerman\\n\\nhad a reasonable expectation of privacy in his emails, id. at 1304-\\n\\n05, concluded that NCMEC's viewing of the email and attachments\\n\\nwithout a warrant violated the Fourth Amendment because the ISP\\n\\nhad \\\"never opened the email itself. Only NCMEC did that, and in\\n\\nat least this way exceeded rather than repeated [the ISP's] private\\n\\n\\n - 9 -\\n\\fsearch.\\\" Id. at 1306. Nor, Ackerman reasoned, was there \\\"any\\n\\ndoubt NCMEC's search of the email itself quite easily 'could [have]\\n\\ndisclose[d]' information previously unknown to the government\\n\\nbesides whether the one attachment contained contraband.\\\" Id.\\n\\n(quoting Jacobsen, 466 U.S. at 122) (alterations in original).\\n\\n The images of the screenshots that NCMEC viewed in\\n\\nPowell's case, however, were precisely the ones that had already\\n\\nbeen viewed by the private actor, Omegle. And, given the form in\\n\\nwhich NCMEC received that material, NCMEC's viewing of those images\\n\\ncould not have disclosed any \\\"fact previously unknown.\\\" Jacobsen,\\n\\n466 U.S. at 122; see also Ackerman, 831 F.3d at 1306. Thus, under\\n\\nthe private search doctrine as Jacobsen defines it, Powell has\\n\\nfailed to show that his Fourth Amendment rights were violated.\\n\\n Powell does suggest, in cursory fashion, that subsequent\\n\\ndevelopments in Fourth Amendment jurisprudence cast doubt on the\\n\\napplicability of the private search doctrine in the digital age,\\n\\nsuch that the screenshots might need to be suppressed even though\\n\\nNCMEC did not exceed the scope of the search conducted by Omegle.\\n\\nBut while he cites in general terms to United States v. Jones, 565\\n\\nU.S. 400, 417 (2012), and what was the then-pending case of\\n\\nCarpenter v. United States, No. 16-402, ___ U.S. ___ (2018), he\\n\\nfails to explain how these cases, neither of which (at least\\n\\ndirectly) concern the private search doctrine, bear on Jacobsen's\\n\\n\\n\\n\\n - 10 -\\n\\fapplication here. Thus, any argument along those lines is waived\\n\\nfor lack of development. Zannino, 895 F.2d at 17.\\n\\n III.\\n\\n The conviction is affirmed.\\n\\n\\n\\n\\n - 11 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402586/\", \"author_raw\": \"BARRON, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"KAYATTA"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625333/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Powell\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1683\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n BRIAN POWELL,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Paul J. Barbadoro, U.S. District Judge]\n\n\n Before\n\n Torruella, Kayatta, and Barron,\n Circuit Judges.\n\n\n Jeffrey W. Langholtz for appellant.\n Seth R. Aframe, Assistant United States Attorney, with whom\nJohn J. Farley, Acting United States Attorney, was on brief, for\nappellee.\n\n\n July 16, 2018\n\f BARRON, Circuit Judge. Brian Powell appeals his\n\nconviction based on his guilty plea for production of child\n\npornography in violation of 18 U.S.C. § 2251(a). Because we see\n\nno error in the District Court's ruling denying his motion to\n\nwithdraw his guilty plea, we affirm the conviction.\n\n I.\n\n On April 19, 2016, the government filed a one-count\n\ninformation against Brian Powell, alleging that he had produced\n\nchild pornography in violation of 18 U.S.C. § 2251(a). On May 2,\n\n2016, Powell pleaded guilty to that count. At the plea hearing,\n\nthe government offered the following facts in support of the\n\ncharge.\n\n Omegle is a chat website that allows users to see each\n\nother and \"chat\" using their computers' video cameras and through\n\ninstant messaging. In July 2015, Powell used Omegle to produce\n\nchild pornography by initiating sexually explicit video-chats with\n\nminors1 and recording a number of video chats as they appeared on\n\n\n\n 1 The District Court noted that the government had not adduced\nevidence demonstrating that at least one individual depicted in\nthe screenshots was a minor, because the individual was not\nidentified. The Court then confirmed with Powell's counsel that\nhe had \"reviewed this issue with [Powell] and [was] satisfied . .\n. [that Powell] understands that the government would have to prove\nthat this was a minor child and he is not prepared to contest the\ngovernment's contention on that point[.]\" Powell's counsel then\nconfirmed that he had spent \"as much time as [he] needed with the\nforensic detective\" reviewing the images and discussed the matter\nwith Powell in discussing his decision whether to plead guilty.\n\n\n - 2 -\n\fhis screen. He then stored those recordings on his personal\n\ncomputer.\n\n Before taking Powell's plea, the District Court engaged\n\nhim in a colloquy pursuant to Rule 11 of the Federal Rules of\n\nCriminal Procedure in which, among other things, he was asked if\n\nhe \"disagree[d] with anything that [the prosecutor] ha[d] said,\"\n\nand Powell confirmed that he did not. See Fed. R. Crim. P. 11.\n\nThe District Court also confirmed that Powell understood the\n\npotential sentence that he was facing and how that sentence would\n\nbe calculated. Powell was next asked if he was \"satisfied with\n\nthe legal advice [he had] received from [his] attorney,\" to which\n\nPowell responded that he was. The District Court also asked\n\nPowell's attorney if \"to [his] knowledge, is [Powell] pleading\n\nguilty because of any illegally obtained evidence in the\n\ngovernment's possession?\" Powell's attorney replied that he \"did\n\nnot believe\" so. At the end of the colloquy, the District Court\n\naccepted Powell's guilty plea.\n\n Nevertheless, many months later, on February 17, 2017,\n\nPowell filed a motion to withdraw his guilty plea. He alleged in\n\nthat motion that his Fourth Amendment rights had been violated\n\nbecause Omegle had forwarded screenshots it had collected of\n\nPowell's chat sessions and the IP address used for them to the\n\nNational Center for Missing and Exploited Children (NCMEC), which\n\nhad then viewed those screenshots and forwarded the IP address and\n\n\n - 3 -\n\fthe screenshots to law enforcement. Powell argued that his\n\ncounsel, in advising him with respect to the guilty plea, had\n\nprovided him with ineffective assistance of counsel in violation\n\nof his Sixth Amendment right to counsel, see Strickland v.\n\nWashington, 466 U.S. 668, 697 (1984), by not having moved pursuant\n\nto the Fourth Amendment to suppress the evidence that Omegle had\n\nsent to NCMEC.\n\n The District Court acknowledged that Powell would be\n\nentitled to withdraw his guilty plea if his counsel had failed to\n\nfile a meritorious suppression motion, and so it held a hearing to\n\naddress the potential merits of any such motion. At that hearing,\n\nthe District Court adduced the following undisputed facts.\n\n Powell's solicitation of child pornography was picked up\n\nthrough Omegle's systematic review process. In this process,\n\nOmegle automatically records periodic screenshots of users' video\n\nchats. Omegle employees then review these records and forward\n\nimages that employees suspect of being child pornography to NCMEC,\n\nan entity that \"is statutorily obliged to maintain an electronic\n\ntip line . . . to report possible Internet child sexual\n\nexploitation violations to the government.\" United States v.\n\nAckerman, 831 F.3d 1292, 1296 (10th Cir. 2016), reh'g denied (Oct.\n\n4, 2016). NCMEC employees then view the images and run the\n\ncorresponding IP addresses through a publicly-available system to\n\n\n\n\n - 4 -\n\fidentify the source's geographic location. NCMEC then passes those\n\nimages and the IP address on to law enforcement.\n\n Omegle followed this process in this case. During\n\nPowell's online interactions, Omegle automatically took\n\nscreenshots. Omegle staff then reviewed these screenshots, along\n\nwith information about Powell's IP address and webcam. An Omegle\n\nemployee identified the screenshots as containing possible child\n\npornography. Omegle submitted the screenshots and computer and\n\nwebcam information to NCMEC. NCMEC reviewed those screenshots and\n\ndetermined that they contained child pornography. NCMEC also\n\nidentified Powell's geographic area based on his IP address. NCMEC\n\nforwarded the screenshots and IP information to law enforcement.\n\n On these facts, the District Court denied Powell's\n\nmotion on May 25, 2017, because it found that the only information\n\nthat NCMEC obtained from Omegle was information that Omegle had\n\nviewed through its own independent searches prior to providing\n\nthat information to NCMEC. It thus concluded that NCMEC had not\n\nviolated Powell's Fourth Amendment rights. Powell now brings this\n\nappeal from that ruling.\n\n II.\n\n Our review of \"a district court's denial of a motion to\n\nwithdraw [a guilty plea is] for abuse of discretion.\" United\n\nStates v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016). In making\n\nthat assessment, we consider \"the strength of the reasons offered\n\n\n - 5 -\n\fin support of the motion,\" United States v. Isom, 580 F.3d 43, 52\n\n(1st Cir. 2009), recognizing that the motion should be permitted\n\n\"if the defendant offers 'a fair and just reason'\" for the motion.\n\nUnited States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006) (quoting\n\nFed. R Crim. P. 11(d)(2)(B)). In determining whether the defendant\n\noffered such a \"fair and just reason,\" our review of the District\n\nCourt's legal conclusions in denying a motion to withdraw is de\n\nnovo. United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013).\n\n We have explained that when a defendant seeks to withdraw\n\na guilty plea based on a claim of ineffective assistance of counsel\n\nunder the Sixth Amendment, that defendant must make two showings.\n\nFirst, he must demonstrate \"that counsel's representation 'fell\n\nbelow an objective level of reasonableness.'\" United States v.\n\nPellerito, 878 F.2d 1535, 1538 (1st Cir. 1989) (quoting Hill v.\n\nLockhart, 474 U.S. 52, 57–59 (1985)). Second, he must show that\n\nthe \"counsel's deficient performance resulted in prejudice -- that\n\nis, 'that there is a reasonable probability that, but for counsel's\n\nunprofessional errors, the result of the proceeding would have\n\nbeen different.'\" United States v. Mercedes-De La Cruz, 787 F.3d\n\n61, 67 (1st Cir. 2015) (quoting Strickland v. Washington, 466 U.S.\n\n668, 694 (1984)).\n\n Powell agrees that, in accord with these requirements,\n\nhe can succeed on his challenge to the denial of his motion to\n\nwithdraw his guilty plea only by showing that the motion to\n\n\n - 6 -\n\fsuppress that he contends that his counsel should have filed would\n\nhave been meritorious. Mercedes-De La Cruz, 787 F.3d at 67.2 But,\n\nfor the reasons that we now explain, we conclude that he has failed\n\nto show that it would have been.\n\n The Fourth Amendment provides that the \"right of the\n\npeople to be secure in their persons, houses, papers and effects,\n\nagainst unreasonable searches and seizures, shall not be\n\nviolated.\" U.S. Const. amend. IV. This protection applies when\n\n\"the person invoking its protection can claim a . . . 'legitimate\n\nexpectation of privacy' that has been invaded by government\n\naction.\" Smith v. Maryland, 442 U.S. 735, 740 (1979).\n\n The parties do not dispute that Powell had a reasonable\n\nexpectation of privacy in the screenshots of his Omegle video chat\n\nconversations. They also do not dispute that Omegle, under our\n\nprecedent, was not acting as a governmental entity or agent, United\n\nStates v. Cameron, 699 F.3d 621 (1st Cir. 2012). Nor do they\n\ndispute that, for all relevant purposes, NCMEC was. What they do\n\n\n\n\n 2 Powell also gestures at an argument that his counsel's\nperformance was ineffective because, relying on United States v.\nCavitt, 550 F.3d 430, 441 (5th Cir. 2008), Powell's counsel did\nnot provide him with the opportunity to adequately review discovery\nbefore he accepted a guilty plea. However, even were this argument\nnot waived for lack of development, see United States v. Zannino,\n895 F.2d 1, 17 (1st Cir. 1990), he clarified at oral argument that\nhis ineffective assistance of counsel argument was not based on\ninadequate access to discovery, but rather solely the failure to\nfile a suppression motion that would have been successful. We\nthus do not need to address that argument here.\n\n\n - 7 -\n\fdispute is whether NCMEC's warrantless viewing of the screenshots\n\nand its review of the other related information that Omegle had\n\nsent to NCMEC requires the suppression of that evidence.\n\n Powell contends, pursuant to what is known as the private\n\nsearch doctrine, that a motion to suppress that evidence would\n\nhave been successful. The private search doctrine provides that,\n\nif a private actor (such as Omegle) searches evidence in which an\n\nindividual has a reasonable expectation of privacy, and then\n\nprovides that evidence to law enforcement or its agent (such as,\n\nin this case, NCMEC), \"[t]he additional invasions of [the\n\nindividual's] privacy by the government agent must be tested by\n\nthe degree to which they exceeded the scope of the private search.\"\n\nUnited States v. Jacobsen, 466 U.S. 109, 115 (1984).\n\n Under this doctrine, there is no Fourth Amendment\n\nviolation if the search by law enforcement or its agent is\n\ncoextensive with the scope of the private actor's private search\n\nand there is \"a virtual certainty that nothing else of\n\nsignificance\" could be revealed by the governmental search. Id.\n\nat 119; accord Ackerman, 831 F.3d at 1306. But if, instead, that\n\nsearch \"exceed[s] the scope of the private search,\" then the\n\ngovernment must have \"the right to make an independent search\"\n\nunder the Fourth Amendment in order for that search to comport\n\nwith the Constitution. Jacobsen, 466 U.S. at 116.\n\n\n\n\n - 8 -\n\f Powell argues that NCMEC's search of the screenshots\n\nexceeded the scope of Omegle's private search, and he relies for\n\nthat contention on the Tenth Circuit's decision in United States\n\nv. Ackerman, 831 F.3d 1292 (10th Cir. 2016). But that case does\n\nnot help him.\n\n In Ackerman, the defendant's internet service provider\n\n(ISP) employed an \"automated filter designed to thwart the\n\ntransmission of child pornography\" through the use of \"hash value\n\nmatching.\" Ackerman, 831 F.3d at 1294. \"A hash value is (usually)\n\na short string of characters generated from a much larger string\n\nof data (say, an electronic image) using an algorithm -- and\n\ncalculated in a way that makes it highly unlikely another set of\n\ndata will produce the same value.\" Id. Ackerman's ISP's hash\n\nvalue matching protocol identified an attachment to Ackerman's\n\nemail as potentially child pornography and automatically forwarded\n\nthat email and its attachments to NCMEC. Id. NCMEC employees\n\nthen viewed Ackerman's email and attachments before passing this\n\nmaterial on to law enforcement. Id.\n\n The Tenth Circuit, on the understanding that Ackerman\n\nhad a reasonable expectation of privacy in his emails, id. at 1304-\n\n05, concluded that NCMEC's viewing of the email and attachments\n\nwithout a warrant violated the Fourth Amendment because the ISP\n\nhad \"never opened the email itself. Only NCMEC did that, and in\n\nat least this way exceeded rather than repeated [the ISP's] private\n\n\n - 9 -\n\fsearch.\" Id. at 1306. Nor, Ackerman reasoned, was there \"any\n\ndoubt NCMEC's search of the email itself quite easily 'could [have]\n\ndisclose[d]' information previously unknown to the government\n\nbesides whether the one attachment contained contraband.\" Id.\n\n(quoting Jacobsen, 466 U.S. at 122) (alterations in original).\n\n The images of the screenshots that NCMEC viewed in\n\nPowell's case, however, were precisely the ones that had already\n\nbeen viewed by the private actor, Omegle. And, given the form in\n\nwhich NCMEC received that material, NCMEC's viewing of those images\n\ncould not have disclosed any \"fact previously unknown.\" Jacobsen,\n\n466 U.S. at 122; see also Ackerman, 831 F.3d at 1306. Thus, under\n\nthe private search doctrine as Jacobsen defines it, Powell has\n\nfailed to show that his Fourth Amendment rights were violated.\n\n Powell does suggest, in cursory fashion, that subsequent\n\ndevelopments in Fourth Amendment jurisprudence cast doubt on the\n\napplicability of the private search doctrine in the digital age,\n\nsuch that the screenshots might need to be suppressed even though\n\nNCMEC did not exceed the scope of the search conducted by Omegle.\n\nBut while he cites in general terms to United States v. Jones, 565\n\nU.S. 400, 417 (2012), and what was the then-pending case of\n\nCarpenter v. United States, No. 16-402, ___ U.S. ___ (2018), he\n\nfails to explain how these cases, neither of which (at least\n\ndirectly) concern the private search doctrine, bear on Jacobsen's\n\n\n\n\n - 10 -\n\fapplication here. Thus, any argument along those lines is waived\n\nfor lack of development. Zannino, 895 F.2d at 17.\n\n III.\n\n The conviction is affirmed.\n\n\n\n\n - 11 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Powell\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-1683\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n BRIAN POWELL,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Paul J. Barbadoro, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Kayatta, and Barron,\\n Circuit Judges.\\n\\n\\n Jeffrey W. Langholtz for appellant.\\n Seth R. Aframe, Assistant United States Attorney, with whom\\nJohn J. Farley, Acting United States Attorney, was on brief, for\\nappellee.\\n\\n\\n July 16, 2018\\n\\f BARRON, Circuit Judge. Brian Powell appeals his\\n\\nconviction based on his guilty plea for production of child\\n\\npornography in violation of 18 U.S.C. § 2251(a). Because we see\\n\\nno error in the District Court's ruling denying his motion to\\n\\nwithdraw his guilty plea, we affirm the conviction.\\n\\n I.\\n\\n On April 19, 2016, the government filed a one-count\\n\\ninformation against Brian Powell, alleging that he had produced\\n\\nchild pornography in violation of 18 U.S.C. § 2251(a). On May 2,\\n\\n2016, Powell pleaded guilty to that count. At the plea hearing,\\n\\nthe government offered the following facts in support of the\\n\\ncharge.\\n\\n Omegle is a chat website that allows users to see each\\n\\nother and \\\"chat\\\" using their computers' video cameras and through\\n\\ninstant messaging. In July 2015, Powell used Omegle to produce\\n\\nchild pornography by initiating sexually explicit video-chats with\\n\\nminors1 and recording a number of video chats as they appeared on\\n\\n\\n\\n 1 The District Court noted that the government had not adduced\\nevidence demonstrating that at least one individual depicted in\\nthe screenshots was a minor, because the individual was not\\nidentified. The Court then confirmed with Powell's counsel that\\nhe had \\\"reviewed this issue with [Powell] and [was] satisfied . .\\n. [that Powell] understands that the government would have to prove\\nthat this was a minor child and he is not prepared to contest the\\ngovernment's contention on that point[.]\\\" Powell's counsel then\\nconfirmed that he had spent \\\"as much time as [he] needed with the\\nforensic detective\\\" reviewing the images and discussed the matter\\nwith Powell in discussing his decision whether to plead guilty.\\n\\n\\n - 2 -\\n\\fhis screen. He then stored those recordings on his personal\\n\\ncomputer.\\n\\n Before taking Powell's plea, the District Court engaged\\n\\nhim in a colloquy pursuant to Rule 11 of the Federal Rules of\\n\\nCriminal Procedure in which, among other things, he was asked if\\n\\nhe \\\"disagree[d] with anything that [the prosecutor] ha[d] said,\\\"\\n\\nand Powell confirmed that he did not. See Fed. R. Crim. P. 11.\\n\\nThe District Court also confirmed that Powell understood the\\n\\npotential sentence that he was facing and how that sentence would\\n\\nbe calculated. Powell was next asked if he was \\\"satisfied with\\n\\nthe legal advice [he had] received from [his] attorney,\\\" to which\\n\\nPowell responded that he was. The District Court also asked\\n\\nPowell's attorney if \\\"to [his] knowledge, is [Powell] pleading\\n\\nguilty because of any illegally obtained evidence in the\\n\\ngovernment's possession?\\\" Powell's attorney replied that he \\\"did\\n\\nnot believe\\\" so. At the end of the colloquy, the District Court\\n\\naccepted Powell's guilty plea.\\n\\n Nevertheless, many months later, on February 17, 2017,\\n\\nPowell filed a motion to withdraw his guilty plea. He alleged in\\n\\nthat motion that his Fourth Amendment rights had been violated\\n\\nbecause Omegle had forwarded screenshots it had collected of\\n\\nPowell's chat sessions and the IP address used for them to the\\n\\nNational Center for Missing and Exploited Children (NCMEC), which\\n\\nhad then viewed those screenshots and forwarded the IP address and\\n\\n\\n - 3 -\\n\\fthe screenshots to law enforcement. Powell argued that his\\n\\ncounsel, in advising him with respect to the guilty plea, had\\n\\nprovided him with ineffective assistance of counsel in violation\\n\\nof his Sixth Amendment right to counsel, see Strickland v.\\n\\nWashington, 466 U.S. 668, 697 (1984), by not having moved pursuant\\n\\nto the Fourth Amendment to suppress the evidence that Omegle had\\n\\nsent to NCMEC.\\n\\n The District Court acknowledged that Powell would be\\n\\nentitled to withdraw his guilty plea if his counsel had failed to\\n\\nfile a meritorious suppression motion, and so it held a hearing to\\n\\naddress the potential merits of any such motion. At that hearing,\\n\\nthe District Court adduced the following undisputed facts.\\n\\n Powell's solicitation of child pornography was picked up\\n\\nthrough Omegle's systematic review process. In this process,\\n\\nOmegle automatically records periodic screenshots of users' video\\n\\nchats. Omegle employees then review these records and forward\\n\\nimages that employees suspect of being child pornography to NCMEC,\\n\\nan entity that \\\"is statutorily obliged to maintain an electronic\\n\\ntip line . . . to report possible Internet child sexual\\n\\nexploitation violations to the government.\\\" United States v.\\n\\nAckerman, 831 F.3d 1292, 1296 (10th Cir. 2016), reh'g denied (Oct.\\n\\n4, 2016). NCMEC employees then view the images and run the\\n\\ncorresponding IP addresses through a publicly-available system to\\n\\n\\n\\n\\n - 4 -\\n\\fidentify the source's geographic location. NCMEC then passes those\\n\\nimages and the IP address on to law enforcement.\\n\\n Omegle followed this process in this case. During\\n\\nPowell's online interactions, Omegle automatically took\\n\\nscreenshots. Omegle staff then reviewed these screenshots, along\\n\\nwith information about Powell's IP address and webcam. An Omegle\\n\\nemployee identified the screenshots as containing possible child\\n\\npornography. Omegle submitted the screenshots and computer and\\n\\nwebcam information to NCMEC. NCMEC reviewed those screenshots and\\n\\ndetermined that they contained child pornography. NCMEC also\\n\\nidentified Powell's geographic area based on his IP address. NCMEC\\n\\nforwarded the screenshots and IP information to law enforcement.\\n\\n On these facts, the District Court denied Powell's\\n\\nmotion on May 25, 2017, because it found that the only information\\n\\nthat NCMEC obtained from Omegle was information that Omegle had\\n\\nviewed through its own independent searches prior to providing\\n\\nthat information to NCMEC. It thus concluded that NCMEC had not\\n\\nviolated Powell's Fourth Amendment rights. Powell now brings this\\n\\nappeal from that ruling.\\n\\n II.\\n\\n Our review of \\\"a district court's denial of a motion to\\n\\nwithdraw [a guilty plea is] for abuse of discretion.\\\" United\\n\\nStates v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016). In making\\n\\nthat assessment, we consider \\\"the strength of the reasons offered\\n\\n\\n - 5 -\\n\\fin support of the motion,\\\" United States v. Isom, 580 F.3d 43, 52\\n\\n(1st Cir. 2009), recognizing that the motion should be permitted\\n\\n\\\"if the defendant offers 'a fair and just reason'\\\" for the motion.\\n\\nUnited States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006) (quoting\\n\\nFed. R Crim. P. 11(d)(2)(B)). In determining whether the defendant\\n\\noffered such a \\\"fair and just reason,\\\" our review of the District\\n\\nCourt's legal conclusions in denying a motion to withdraw is de\\n\\nnovo. United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013).\\n\\n We have explained that when a defendant seeks to withdraw\\n\\na guilty plea based on a claim of ineffective assistance of counsel\\n\\nunder the Sixth Amendment, that defendant must make two showings.\\n\\nFirst, he must demonstrate \\\"that counsel's representation 'fell\\n\\nbelow an objective level of reasonableness.'\\\" United States v.\\n\\nPellerito, 878 F.2d 1535, 1538 (1st Cir. 1989) (quoting Hill v.\\n\\nLockhart, 474 U.S. 52, 57–59 (1985)). Second, he must show that\\n\\nthe \\\"counsel's deficient performance resulted in prejudice -- that\\n\\nis, 'that there is a reasonable probability that, but for counsel's\\n\\nunprofessional errors, the result of the proceeding would have\\n\\nbeen different.'\\\" United States v. Mercedes-De La Cruz, 787 F.3d\\n\\n61, 67 (1st Cir. 2015) (quoting Strickland v. Washington, 466 U.S.\\n\\n668, 694 (1984)).\\n\\n Powell agrees that, in accord with these requirements,\\n\\nhe can succeed on his challenge to the denial of his motion to\\n\\nwithdraw his guilty plea only by showing that the motion to\\n\\n\\n - 6 -\\n\\fsuppress that he contends that his counsel should have filed would\\n\\nhave been meritorious. Mercedes-De La Cruz, 787 F.3d at 67.2 But,\\n\\nfor the reasons that we now explain, we conclude that he has failed\\n\\nto show that it would have been.\\n\\n The Fourth Amendment provides that the \\\"right of the\\n\\npeople to be secure in their persons, houses, papers and effects,\\n\\nagainst unreasonable searches and seizures, shall not be\\n\\nviolated.\\\" U.S. Const. amend. IV. This protection applies when\\n\\n\\\"the person invoking its protection can claim a . . . 'legitimate\\n\\nexpectation of privacy' that has been invaded by government\\n\\naction.\\\" Smith v. Maryland, 442 U.S. 735, 740 (1979).\\n\\n The parties do not dispute that Powell had a reasonable\\n\\nexpectation of privacy in the screenshots of his Omegle video chat\\n\\nconversations. They also do not dispute that Omegle, under our\\n\\nprecedent, was not acting as a governmental entity or agent, United\\n\\nStates v. Cameron, 699 F.3d 621 (1st Cir. 2012). Nor do they\\n\\ndispute that, for all relevant purposes, NCMEC was. What they do\\n\\n\\n\\n\\n 2 Powell also gestures at an argument that his counsel's\\nperformance was ineffective because, relying on United States v.\\nCavitt, 550 F.3d 430, 441 (5th Cir. 2008), Powell's counsel did\\nnot provide him with the opportunity to adequately review discovery\\nbefore he accepted a guilty plea. However, even were this argument\\nnot waived for lack of development, see United States v. Zannino,\\n895 F.2d 1, 17 (1st Cir. 1990), he clarified at oral argument that\\nhis ineffective assistance of counsel argument was not based on\\ninadequate access to discovery, but rather solely the failure to\\nfile a suppression motion that would have been successful. We\\nthus do not need to address that argument here.\\n\\n\\n - 7 -\\n\\fdispute is whether NCMEC's warrantless viewing of the screenshots\\n\\nand its review of the other related information that Omegle had\\n\\nsent to NCMEC requires the suppression of that evidence.\\n\\n Powell contends, pursuant to what is known as the private\\n\\nsearch doctrine, that a motion to suppress that evidence would\\n\\nhave been successful. The private search doctrine provides that,\\n\\nif a private actor (such as Omegle) searches evidence in which an\\n\\nindividual has a reasonable expectation of privacy, and then\\n\\nprovides that evidence to law enforcement or its agent (such as,\\n\\nin this case, NCMEC), \\\"[t]he additional invasions of [the\\n\\nindividual's] privacy by the government agent must be tested by\\n\\nthe degree to which they exceeded the scope of the private search.\\\"\\n\\nUnited States v. Jacobsen, 466 U.S. 109, 115 (1984).\\n\\n Under this doctrine, there is no Fourth Amendment\\n\\nviolation if the search by law enforcement or its agent is\\n\\ncoextensive with the scope of the private actor's private search\\n\\nand there is \\\"a virtual certainty that nothing else of\\n\\nsignificance\\\" could be revealed by the governmental search. Id.\\n\\nat 119; accord Ackerman, 831 F.3d at 1306. But if, instead, that\\n\\nsearch \\\"exceed[s] the scope of the private search,\\\" then the\\n\\ngovernment must have \\\"the right to make an independent search\\\"\\n\\nunder the Fourth Amendment in order for that search to comport\\n\\nwith the Constitution. Jacobsen, 466 U.S. at 116.\\n\\n\\n\\n\\n - 8 -\\n\\f Powell argues that NCMEC's search of the screenshots\\n\\nexceeded the scope of Omegle's private search, and he relies for\\n\\nthat contention on the Tenth Circuit's decision in United States\\n\\nv. Ackerman, 831 F.3d 1292 (10th Cir. 2016). But that case does\\n\\nnot help him.\\n\\n In Ackerman, the defendant's internet service provider\\n\\n(ISP) employed an \\\"automated filter designed to thwart the\\n\\ntransmission of child pornography\\\" through the use of \\\"hash value\\n\\nmatching.\\\" Ackerman, 831 F.3d at 1294. \\\"A hash value is (usually)\\n\\na short string of characters generated from a much larger string\\n\\nof data (say, an electronic image) using an algorithm -- and\\n\\ncalculated in a way that makes it highly unlikely another set of\\n\\ndata will produce the same value.\\\" Id. Ackerman's ISP's hash\\n\\nvalue matching protocol identified an attachment to Ackerman's\\n\\nemail as potentially child pornography and automatically forwarded\\n\\nthat email and its attachments to NCMEC. Id. NCMEC employees\\n\\nthen viewed Ackerman's email and attachments before passing this\\n\\nmaterial on to law enforcement. Id.\\n\\n The Tenth Circuit, on the understanding that Ackerman\\n\\nhad a reasonable expectation of privacy in his emails, id. at 1304-\\n\\n05, concluded that NCMEC's viewing of the email and attachments\\n\\nwithout a warrant violated the Fourth Amendment because the ISP\\n\\nhad \\\"never opened the email itself. Only NCMEC did that, and in\\n\\nat least this way exceeded rather than repeated [the ISP's] private\\n\\n\\n - 9 -\\n\\fsearch.\\\" Id. at 1306. Nor, Ackerman reasoned, was there \\\"any\\n\\ndoubt NCMEC's search of the email itself quite easily 'could [have]\\n\\ndisclose[d]' information previously unknown to the government\\n\\nbesides whether the one attachment contained contraband.\\\" Id.\\n\\n(quoting Jacobsen, 466 U.S. at 122) (alterations in original).\\n\\n The images of the screenshots that NCMEC viewed in\\n\\nPowell's case, however, were precisely the ones that had already\\n\\nbeen viewed by the private actor, Omegle. And, given the form in\\n\\nwhich NCMEC received that material, NCMEC's viewing of those images\\n\\ncould not have disclosed any \\\"fact previously unknown.\\\" Jacobsen,\\n\\n466 U.S. at 122; see also Ackerman, 831 F.3d at 1306. Thus, under\\n\\nthe private search doctrine as Jacobsen defines it, Powell has\\n\\nfailed to show that his Fourth Amendment rights were violated.\\n\\n Powell does suggest, in cursory fashion, that subsequent\\n\\ndevelopments in Fourth Amendment jurisprudence cast doubt on the\\n\\napplicability of the private search doctrine in the digital age,\\n\\nsuch that the screenshots might need to be suppressed even though\\n\\nNCMEC did not exceed the scope of the search conducted by Omegle.\\n\\nBut while he cites in general terms to United States v. Jones, 565\\n\\nU.S. 400, 417 (2012), and what was the then-pending case of\\n\\nCarpenter v. United States, No. 16-402, ___ U.S. ___ (2018), he\\n\\nfails to explain how these cases, neither of which (at least\\n\\ndirectly) concern the private search doctrine, bear on Jacobsen's\\n\\n\\n\\n\\n - 10 -\\n\\fapplication here. Thus, any argument along those lines is waived\\n\\nfor lack of development. Zannino, 895 F.2d at 17.\\n\\n III.\\n\\n The conviction is affirmed.\\n\\n\\n\\n\\n - 11 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1976,"cells":{"id":{"kind":"number","value":4625334,"string":"4,625,334"},"name":{"kind":"string","value":"Mauricio FABIAN-SORIANO, Petitioner, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Fabian-Soriano v. Barr"},"decision_date":{"kind":"string","value":"2019-05-31"},"docket_number":{"kind":"string","value":"18-2052P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Selya, Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2052\\n\\n MAURICIO FABIAN-SORIANO,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,*\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF THE\\n BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Megan M. O'Neill, Anne Y. Lee, and Covington & Burling LLP on\\nbrief for petitioner.\\n Robert Michael Stalzer, Trial Attorney, Office of Immigration\\nLitigation, Joseph H. Hunt, Assistant Attorney General, Civil\\nDivision, and Stephen J. Flynn, Assistant Director, Office of\\nImmigration Litigation, on brief for respondent.\\n\\n\\n\\n\\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\\nWilliam P. Barr has been substituted for former Attorney General\\nJefferson B. Sessions, III as the respondent.\\n\\fMay 31, 2019\\n\\f LYNCH, Circuit Judge. The primary issue in this\\n\\nimmigration case is whether the statutory bar in 8 U.S.C.\\n\\n§ 1252(a)(2)(C) strips this court of jurisdiction over Mauricio\\n\\nFabian-Soriano's petition for judicial review of a Board of\\n\\nImmigration Appeals' decision adopting and affirming an\\n\\nImmigration Judge's denial of Fabian's request for withholding of\\n\\nremoval under the Immigration and Nationality Act § 241(b)(3), 8\\n\\nU.S.C. § 1231(b)(3).\\n\\n Because Fabian is removable due to his conviction for a\\n\\nstate crime involving moral turpitude, we lack jurisdiction under\\n\\n8 U.S.C. § 1252(a)(2)(C) to consider Fabian's challenge to the\\n\\ndenial of withholding of removal. He raises no colorable legal or\\n\\nconstitutional claims. We also lack jurisdiction to consider\\n\\nFabian's argument, made for the first time in his brief to us,\\n\\nthat he is part of a particular social group consisting of \\\"persons\\n\\nwho oppose gang membership and face continuous threatening\\n\\nbehavior after resisting recruitment, even after informing the\\n\\npolice and seeking their assistance and protection.\\\" He did not\\n\\nexhaust that argument.\\n\\n We dismiss the petition for review for lack of\\n\\njurisdiction.\\n\\n I.\\n\\n Fabian entered the United States near McAllen, Texas\\n\\nwithout inspection in October 2013. On November 10, 2017, Fabian\\n\\n\\n - 3 -\\n\\fwas convicted of indecent assault and battery on a person fourteen\\n\\nyears or older, in violation of Massachusetts General Laws chapter\\n\\n265, § 13H. On February 7, 2018, officers from U.S. Immigration\\n\\nand Customs Enforcement conducted a routine check to identify\\n\\nremovable aliens at the Suffolk County House of Correction in\\n\\nMassachusetts where Fabian was incarcerated. The ICE check\\n\\nrevealed Fabian's unlawful status, and the Department of Homeland\\n\\nSecurity initiated removal proceedings against him on March 1,\\n\\n2018. DHS charged him with being inadmissible under 8 U.S.C.\\n\\n§ 1182(a)(6)(A)(i), as an alien present in the United States\\n\\nwithout being admitted or paroled, and 8 U.S.C.\\n\\n§ 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a\\n\\ncrime involving moral turpitude.\\n\\n On March 19, 2018, Fabian appeared pro se before an IJ\\n\\nin Massachusetts, who, after granting several continuances at\\n\\nFabian's request, found Fabian removable.1 On March 27, 2018,\\n\\nFabian again appeared pro se before the IJ to submit his\\n\\napplication for asylum, withholding of removal, and protection\\n\\nunder the Convention Against Torture (CAT). In the alternative,\\n\\nFabian requested voluntary departure.\\n\\n\\n\\n\\n 1 At that March 19 hearing, Fabian admitted to entering\\nthe United States without being admitted or paroled after\\ninspection by an immigration officer, and to the indecent assault\\nand battery conviction.\\n\\n\\n - 4 -\\n\\f At a merits hearing on April 26, 2018, Fabian again\\n\\nappeared pro se, and was provided an interpreter. He was the only\\n\\nwitness. He testified that he was fearful of returning to El\\n\\nSalvador because he had resisted recruitment by the MS-13 gang.\\n\\nBeginning in August 2013, he said, MS-13 members sent him four or\\n\\nfive anonymous messages telling him to attend a \\\"jumping\\\"\\n\\ninitiation, during which a new gang recruit is tortured for\\n\\nthirteen seconds. Fabian testified that he received the messages\\n\\n\\\"on [his] phone.\\\" Fabian ignored these messages.\\n\\n On September 15, 2013, Fabian said, four people dressed\\n\\nin black, with ski masks covering their faces and weapons in their\\n\\nhands, knocked on his door. He did not open the door, but hid out\\n\\nof sight. Fabian texted his brother, a police officer in a\\n\\ndifferent town, about what was happening. Fabian's brother\\n\\ncontacted the local police, who sent a patrol car to Fabian's\\n\\nhouse, causing the masked people to hide. When the masked people\\n\\nfinally left the next morning, Fabian fled to his aunt's house,\\n\\nwhere he remained until he came to the United States. He has\\n\\nreceived one anonymous threatening message on Facebook since then.\\n\\nFabian admitted that no one has harmed, mistreated, or threatened\\n\\nhis family in El Salvador, but he still feared that MS-13 would\\n\\nharm or mistreat him if he returned because of his refusal to join\\n\\nthe gang.\\n\\n\\n\\n\\n - 5 -\\n\\f On April 26, 2018, the IJ denied Fabian's applications\\n\\nfor relief and ordered him removed. The IJ found Fabian credible\\n\\nand that he genuinely feared returning to El Salvador. The IJ\\n\\ndenied Fabian's request for withholding of removal because Fabian\\n\\nfailed to meet his burden to establish harm or mistreatment rising\\n\\nto the level of past persecution. The IJ found that the messages\\n\\nfrom MS-13 members were not \\\"so menacing as to cause significant\\n\\nactual suffering and harm,\\\" particularly since Fabian had not\\n\\nprovided \\\"medical or any other documentation that he continued to\\n\\nsuffer in some way from th[o]se threats.\\\" Alternatively, the IJ\\n\\nfound that \\\"even if the sum total of the respondent's past\\n\\nexperiences did amount to persecution, there has been no showing\\n\\n. . . that any past persecution or any well-founded fear or clear\\n\\nprobability is on account of a protected ground.\\\" That is, \\\"there\\n\\n[was] no showing that the threats were on account of his race,\\n\\nreligion, political opinion, social group, or nationality.\\\"\\n\\n Fabian appealed the IJ's decision to the BIA in a pro se\\n\\nfiling. The BIA adopted and affirmed the IJ's decision. The BIA\\n\\nheld that Fabian \\\"ha[d] not made any specific arguments regarding\\n\\nthe [IJ's] decision and ha[d] not meaningfully challenged any of\\n\\nthe findings or conclusions underlying the denial of his\\n\\napplications for relief and protection.\\\" The BIA declined to\\n\\nconsider Fabian's argument that he was eligible for asylum due to\\n\\n\\n\\n\\n - 6 -\\n\\fhis political opinion, because Fabian had not made that argument\\n\\nbefore the IJ.\\n\\n Represented by counsel, Fabian filed a petition for\\n\\nreview of the BIA's decision on October 24, 2018. Fabian was\\n\\nremoved to El Salvador on November 21, 2018. All agree that his\\n\\nremoval does not moot his petition.\\n\\n II.\\n\\n Fabian's petition challenges the denial of withholding\\n\\nof removal on the grounds that (1) he did suffer past persecution,\\n\\n(2) the agency decision failed to give \\\"reasoned consideration\\\" to\\n\\nwhether Fabian was more likely than not to face future persecution,\\n\\nand (3) Fabian described a particular social group that the agency\\n\\nwrongly rejected.2 We lack jurisdiction to consider his arguments.\\n\\nA. We Lack Jurisdiction Over Fabian's Challenge\\n\\n The INA provides that \\\"no court shall have jurisdiction\\n\\nto review any final order of removal against an alien who is\\n\\nremovable by reason of [a conviction for a crime involving moral\\n\\n\\n\\n\\n 2 Before this court, Fabian does not challenge the denial\\nof his request for asylum under INA § 208(a), 8 U.S.C. § 1158(a);\\nfor protection under the CAT, 8 C.F.R. §§ 1208.16(c), 1208.18; or\\nfor voluntary departure under INA § 240B(b), 8 U.S.C. § 1229c(b).\\nFabian also does not challenge the denial of his request for\\nadditional continuances to find an attorney for his merits hearing\\nbefore the IJ. Nor does he revive his argument, made for the first\\ntime before the BIA, that he suffered past persecution or was\\nlikely to face future persecution on account of his political\\nopinion.\\n\\n\\n\\n - 7 -\\n\\fturpitude].\\\"3 8 U.S.C. § 1252(a)(2)(C). Nevertheless, under the\\n\\nREAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 231, 310 (2005),\\n\\nthis court retains jurisdiction to review \\\"constitutional claims\\n\\nor questions of law raised upon a petition for review.\\\" Id.\\n\\n§ 1252(a)(2)(D).\\n\\n Fabian attempts, unsuccessfully, to characterize his\\n\\nclaims as raising colorable issues of law. Under well settled\\n\\nFirst Circuit precedent, where the agency has utilized the correct\\n\\nlegal standards in a reasoned opinion and the petitioner challenges\\n\\na determination about the sufficiency of the evidence to meet his\\n\\nburden of proof, no colorable legal or constitutional claim is\\n\\npresented.4 See Ayeni v. Holder, 617 F.3d 67, 70–71 (1st Cir.\\n\\n\\n 3 Fabian properly concedes that his conviction for\\nindecent assault and battery of a person fourteen years or older\\nis a crime involving moral turpitude.\\n\\n 4 Fabian cites to Ramadan v. Gonzales, 479 F.3d 646 (9th\\nCir. 2007), which held that \\\"jurisdiction over 'questions of law'\\nas defined in the Real ID Act includes not only 'pure' issues of\\nstatutory interpretation, but also application of law to\\nundisputed facts.\\\" Id. at 648. In that case, the Ninth Circuit\\nheld that it could review the BIA's application of the changed or\\nextraordinary circumstances exception to the one-year asylum\\ndeadline when the facts are not disputed. Id. That is not our\\nlaw and Fabian has not developed any argument as to why we should\\nadopt Ramadan's approach, so he has waived this argument. See\\nNegeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005).\\n Moreover, the Ninth Circuit has acknowledged that it is\\n\\\"alone in interpreting the REAL ID Act to allow for such broad\\nreview,\\\" at least in the context of the changed or extraordinary\\ncircumstances exception. Al Ramahi v. Holder, 725 F.3d 1133, 1138\\nn.2 (9th Cir. 2013). Most other circuits disagree. Id.\\n(collecting cases); see, e.g., Viracacha v. Mukasey, 518 F.3d 511,\\n515 (7th Cir. 2008) (\\\"Because no administrative case can be decided\\n\\n\\n - 8 -\\n\\f2010) (\\\"The petitioner's claim that the BIA failed to accord\\n\\nsufficient weight to the seriousness of his son's asthma is a\\n\\nfactual claim. Cloaking it in the garb of legal error does not\\n\\nalter its nature.\\\"); Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir.\\n\\n2006) (holding that the \\\"assertion that the IJ (and thus, the BIA)\\n\\nmisconstrued the evidence and, in the bargain, relied too heavily\\n\\non a vague and general report of changed country conditions . . .\\n\\nis a classic claim of factual error\\\"); Elysee v. Gonzales, 437\\n\\nF.3d 221, 223–24 (1st Cir. 2006) (holding that the petitioner's\\n\\narguments, including that \\\"unfair weight [was] given to the fact\\n\\nthat [petitioner's] underlying convictions stemmed from incidents\\n\\nof domestic violence\\\" were \\\"not constitutional claims or questions\\n\\nof law but attacks on the factual findings made and the balancing\\n\\nof factors engaged in by the IJ\\\"); see also Rashad v. Mukasey, 554\\n\\nF.3d 1, 5 (1st Cir. 2009) (holding that the allegation that the\\n\\nagency failed to \\\"fully evaluate\\\" an aspect of a claim is just\\n\\nanother attack on weighing facts, \\\"which is simply a factual claim\\n\\nmasqueraded as a legal challenge\\\"). We have consistently held\\n\\nthat the REAL ID Act does not permit \\\"review of the BIA's factual\\n\\nfindings as to credibility, evidentiary weight, and satisfaction\\n\\nof a correctly framed burden of proof.\\\" Conteh, 461 F.3d at 63;\\n\\nsee Larngar v. Holder, 562 F.3d 71, 79 (1st Cir. 2009) (\\\"Under\\n\\n\\n\\nwithout applying some law to some facts, [Ramadan's] understanding\\nof § 1252(a)(2)(D) vitiates all clauses in the statute . . . .\\\").\\n\\n\\n - 9 -\\n\\fConteh, the question of whether a party has established prima facie\\n\\neligibility for relief under the CAT could be characterized as, at\\n\\nbottom . . . a question about whether a party has satisfied a\\n\\n'correctly framed burden of proof.'\\\" (citing Conteh, 461 F.3d at\\n\\n63)).\\n\\n Fabian does not claim that the agency used an incorrect\\n\\nlegal standard in assessing his claim for withholding of removal.\\n\\nRather, he is challenging the factual determination that the\\n\\nevidence was insufficient to satisfy his burden to show that he\\n\\nsuffered past persecution and that, even if he had met this burden,\\n\\nhe had not shown that any past persecution or probability of future\\n\\npersecution was on account of a protected ground. See Rashad, 554\\n\\nF.3d at 5-6 (describing the petitioner's burden for withholding of\\n\\nremoval). Specifically, Fabian is challenging the factual\\n\\ndetermination by the agency that the threats he received did not\\n\\nrise to the level of persecution, which we lack jurisdiction to\\n\\nreview. See Conteh, 461 F.3d at 63; see also Morales-Morales v.\\n\\nSessions, 857 F.3d 130, 134 (1st Cir. 2017) (\\\"We treat the rulings\\n\\nbelow that [the petitioner] has not met his burden of demonstrating\\n\\npast persecution as factual determinations subject only to the\\n\\nhighly deferential substantial evidence standard.\\\" (internal\\n\\nquotation marks and alterations omitted)); Larngar, 562 F.3d at 76\\n\\n(\\\"[T]he REAL ID Act's legislative history, in distinguishing\\n\\nfactual questions from legal ones, categorizes as factual those\\n\\n\\n - 10 -\\n\\fquestions that courts would review under the substantial evidence\\n\\nstandard.\\\" (internal quotation marks omitted)); Lumataw v. Holder,\\n\\n582 F.3d 78, 92 (1st Cir. 2009) (reviewing whether the petitioner\\n\\nhad satisfied his burden for withholding of removal under the\\n\\n\\\"substantial evidence\\\" standard).\\n\\n \\\"The presence vel non of either a constitutional or legal\\n\\nquestion is a matter of substance, not a function of labeling.\\\"\\n\\nAyeni, 617 F.3d at 70–71. \\\"For jurisdiction to attach, the claim\\n\\nof constitutional or legal error must at least be colorable,\\\" id.\\n\\nat 71, which these claims are not.\\n\\n Fabian also attempts to avoid the jurisdictional bar by\\n\\narguing that the agency failed to give \\\"reasoned consideration\\\" to\\n\\nwhether Fabian was more likely than not to face future persecution.\\n\\nThis argument misapprehends both our law and the agency decision.\\n\\nThe agency gave reasoned consideration to Fabian's application\\n\\nusing the correct legal standard, and determined that he had not\\n\\nmet his burden to show that any past persecution or probability of\\n\\nfuture persecution (if any) would be on account of a protected\\n\\nground.\\n\\n Contrary to Fabian's argument, this case is unlike Un v.\\n\\nGonzales, 415 F.3d 205 (1st Cir. 2005), where the IJ and the BIA\\n\\n\\\"failed to address one of the two avenues open to an applicant for\\n\\nproving entitlement to withholding of removal, i.e., whether he\\n\\nhad suffered past persecution on account of one of five proscribed\\n\\n\\n - 11 -\\n\\fgrounds.\\\" Id. at 208. Nor is this case like Enwonwu v. Gonzales,\\n\\n438 F.3d 22 (1st Cir. 2006), where the BIA failed to address the\\n\\nIJ's second ground for its decision when reversing the IJ's grant\\n\\nof relief under the CAT. Id. at 35. Fabian's argument is nothing\\n\\nmore than a challenge to the agency's determination that he did\\n\\nnot present sufficient evidence to meet his burden for withholding\\n\\nof removal, which we lack jurisdiction to review.\\n\\nB. Fabian Failed to Exhaust His Particular Social Group Argument\\n\\n Fabian's argument to this court that the IJ committed\\n\\nlegal error by rejecting Fabian's formulation of a particular\\n\\nsocial group fares no better, as Fabian has not exhausted his\\n\\nadministrative remedies. See Ouk v. Gonzales, 464 F.3d 108, 111\\n\\n(1st Cir. 2006). We lack jurisdiction to consider an alternative\\n\\ndescription of a particular social group raised for the first time\\n\\non petition for review. Perez-Rabanales v. Sessions, 881 F.3d 61,\\n\\n67 n.1 (1st Cir. 2018).\\n\\n Before the IJ and the BIA, Fabian did not claim that he\\n\\nwas part of a particular social group of \\\"persons who oppose gang\\n\\nmembership and face continuous threatening behavior after\\n\\nresisting recruitment, even after informing the police and seeking\\n\\ntheir assistance and protection.\\\" He only claimed that he was\\n\\ntargeted \\\"[b]ecause they asked [him] to join the gang, and [he]\\n\\nrefused.\\\" \\\"[C]ourts have historically loosened the reins for pro\\n\\nse parties,\\\" Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,\\n\\n\\n - 12 -\\n\\f20 F.3d 503, 506 (1st Cir. 1994), but pro se litigants are not\\n\\nexempt from exhaustion requirements, see, e.g., Foster v. I.N.S.,\\n\\n376 F.3d 75, 77-78 (2d Cir. 2004).\\n\\n The petition for review is dismissed.\\n\\n\\n\\n\\n - 13 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402587/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"LYNCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625334/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mauricio FABIAN-SORIANO, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2052\n\n MAURICIO FABIAN-SORIANO,\n\n Petitioner,\n\n v.\n\n WILLIAM P. BARR,*\n UNITED STATES ATTORNEY GENERAL,\n\n Respondent.\n\n\n PETITION FOR REVIEW OF AN ORDER OF THE\n BOARD OF IMMIGRATION APPEALS\n\n\n Before\n\n Torruella, Selya, and Lynch,\n Circuit Judges.\n\n\n Megan M. O'Neill, Anne Y. Lee, and Covington & Burling LLP on\nbrief for petitioner.\n Robert Michael Stalzer, Trial Attorney, Office of Immigration\nLitigation, Joseph H. Hunt, Assistant Attorney General, Civil\nDivision, and Stephen J. Flynn, Assistant Director, Office of\nImmigration Litigation, on brief for respondent.\n\n\n\n\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\nWilliam P. Barr has been substituted for former Attorney General\nJefferson B. Sessions, III as the respondent.\n\fMay 31, 2019\n\f LYNCH, Circuit Judge. The primary issue in this\n\nimmigration case is whether the statutory bar in 8 U.S.C.\n\n§ 1252(a)(2)(C) strips this court of jurisdiction over Mauricio\n\nFabian-Soriano's petition for judicial review of a Board of\n\nImmigration Appeals' decision adopting and affirming an\n\nImmigration Judge's denial of Fabian's request for withholding of\n\nremoval under the Immigration and Nationality Act § 241(b)(3), 8\n\nU.S.C. § 1231(b)(3).\n\n Because Fabian is removable due to his conviction for a\n\nstate crime involving moral turpitude, we lack jurisdiction under\n\n8 U.S.C. § 1252(a)(2)(C) to consider Fabian's challenge to the\n\ndenial of withholding of removal. He raises no colorable legal or\n\nconstitutional claims. We also lack jurisdiction to consider\n\nFabian's argument, made for the first time in his brief to us,\n\nthat he is part of a particular social group consisting of \"persons\n\nwho oppose gang membership and face continuous threatening\n\nbehavior after resisting recruitment, even after informing the\n\npolice and seeking their assistance and protection.\" He did not\n\nexhaust that argument.\n\n We dismiss the petition for review for lack of\n\njurisdiction.\n\n I.\n\n Fabian entered the United States near McAllen, Texas\n\nwithout inspection in October 2013. On November 10, 2017, Fabian\n\n\n - 3 -\n\fwas convicted of indecent assault and battery on a person fourteen\n\nyears or older, in violation of Massachusetts General Laws chapter\n\n265, § 13H. On February 7, 2018, officers from U.S. Immigration\n\nand Customs Enforcement conducted a routine check to identify\n\nremovable aliens at the Suffolk County House of Correction in\n\nMassachusetts where Fabian was incarcerated. The ICE check\n\nrevealed Fabian's unlawful status, and the Department of Homeland\n\nSecurity initiated removal proceedings against him on March 1,\n\n2018. DHS charged him with being inadmissible under 8 U.S.C.\n\n§ 1182(a)(6)(A)(i), as an alien present in the United States\n\nwithout being admitted or paroled, and 8 U.S.C.\n\n§ 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a\n\ncrime involving moral turpitude.\n\n On March 19, 2018, Fabian appeared pro se before an IJ\n\nin Massachusetts, who, after granting several continuances at\n\nFabian's request, found Fabian removable.1 On March 27, 2018,\n\nFabian again appeared pro se before the IJ to submit his\n\napplication for asylum, withholding of removal, and protection\n\nunder the Convention Against Torture (CAT). In the alternative,\n\nFabian requested voluntary departure.\n\n\n\n\n 1 At that March 19 hearing, Fabian admitted to entering\nthe United States without being admitted or paroled after\ninspection by an immigration officer, and to the indecent assault\nand battery conviction.\n\n\n - 4 -\n\f At a merits hearing on April 26, 2018, Fabian again\n\nappeared pro se, and was provided an interpreter. He was the only\n\nwitness. He testified that he was fearful of returning to El\n\nSalvador because he had resisted recruitment by the MS-13 gang.\n\nBeginning in August 2013, he said, MS-13 members sent him four or\n\nfive anonymous messages telling him to attend a \"jumping\"\n\ninitiation, during which a new gang recruit is tortured for\n\nthirteen seconds. Fabian testified that he received the messages\n\n\"on [his] phone.\" Fabian ignored these messages.\n\n On September 15, 2013, Fabian said, four people dressed\n\nin black, with ski masks covering their faces and weapons in their\n\nhands, knocked on his door. He did not open the door, but hid out\n\nof sight. Fabian texted his brother, a police officer in a\n\ndifferent town, about what was happening. Fabian's brother\n\ncontacted the local police, who sent a patrol car to Fabian's\n\nhouse, causing the masked people to hide. When the masked people\n\nfinally left the next morning, Fabian fled to his aunt's house,\n\nwhere he remained until he came to the United States. He has\n\nreceived one anonymous threatening message on Facebook since then.\n\nFabian admitted that no one has harmed, mistreated, or threatened\n\nhis family in El Salvador, but he still feared that MS-13 would\n\nharm or mistreat him if he returned because of his refusal to join\n\nthe gang.\n\n\n\n\n - 5 -\n\f On April 26, 2018, the IJ denied Fabian's applications\n\nfor relief and ordered him removed. The IJ found Fabian credible\n\nand that he genuinely feared returning to El Salvador. The IJ\n\ndenied Fabian's request for withholding of removal because Fabian\n\nfailed to meet his burden to establish harm or mistreatment rising\n\nto the level of past persecution. The IJ found that the messages\n\nfrom MS-13 members were not \"so menacing as to cause significant\n\nactual suffering and harm,\" particularly since Fabian had not\n\nprovided \"medical or any other documentation that he continued to\n\nsuffer in some way from th[o]se threats.\" Alternatively, the IJ\n\nfound that \"even if the sum total of the respondent's past\n\nexperiences did amount to persecution, there has been no showing\n\n. . . that any past persecution or any well-founded fear or clear\n\nprobability is on account of a protected ground.\" That is, \"there\n\n[was] no showing that the threats were on account of his race,\n\nreligion, political opinion, social group, or nationality.\"\n\n Fabian appealed the IJ's decision to the BIA in a pro se\n\nfiling. The BIA adopted and affirmed the IJ's decision. The BIA\n\nheld that Fabian \"ha[d] not made any specific arguments regarding\n\nthe [IJ's] decision and ha[d] not meaningfully challenged any of\n\nthe findings or conclusions underlying the denial of his\n\napplications for relief and protection.\" The BIA declined to\n\nconsider Fabian's argument that he was eligible for asylum due to\n\n\n\n\n - 6 -\n\fhis political opinion, because Fabian had not made that argument\n\nbefore the IJ.\n\n Represented by counsel, Fabian filed a petition for\n\nreview of the BIA's decision on October 24, 2018. Fabian was\n\nremoved to El Salvador on November 21, 2018. All agree that his\n\nremoval does not moot his petition.\n\n II.\n\n Fabian's petition challenges the denial of withholding\n\nof removal on the grounds that (1) he did suffer past persecution,\n\n(2) the agency decision failed to give \"reasoned consideration\" to\n\nwhether Fabian was more likely than not to face future persecution,\n\nand (3) Fabian described a particular social group that the agency\n\nwrongly rejected.2 We lack jurisdiction to consider his arguments.\n\nA. We Lack Jurisdiction Over Fabian's Challenge\n\n The INA provides that \"no court shall have jurisdiction\n\nto review any final order of removal against an alien who is\n\nremovable by reason of [a conviction for a crime involving moral\n\n\n\n\n 2 Before this court, Fabian does not challenge the denial\nof his request for asylum under INA § 208(a), 8 U.S.C. § 1158(a);\nfor protection under the CAT, 8 C.F.R. §§ 1208.16(c), 1208.18; or\nfor voluntary departure under INA § 240B(b), 8 U.S.C. § 1229c(b).\nFabian also does not challenge the denial of his request for\nadditional continuances to find an attorney for his merits hearing\nbefore the IJ. Nor does he revive his argument, made for the first\ntime before the BIA, that he suffered past persecution or was\nlikely to face future persecution on account of his political\nopinion.\n\n\n\n - 7 -\n\fturpitude].\"3 8 U.S.C. § 1252(a)(2)(C). Nevertheless, under the\n\nREAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 231, 310 (2005),\n\nthis court retains jurisdiction to review \"constitutional claims\n\nor questions of law raised upon a petition for review.\" Id.\n\n§ 1252(a)(2)(D).\n\n Fabian attempts, unsuccessfully, to characterize his\n\nclaims as raising colorable issues of law. Under well settled\n\nFirst Circuit precedent, where the agency has utilized the correct\n\nlegal standards in a reasoned opinion and the petitioner challenges\n\na determination about the sufficiency of the evidence to meet his\n\nburden of proof, no colorable legal or constitutional claim is\n\npresented.4 See Ayeni v. Holder, 617 F.3d 67, 70–71 (1st Cir.\n\n\n 3 Fabian properly concedes that his conviction for\nindecent assault and battery of a person fourteen years or older\nis a crime involving moral turpitude.\n\n 4 Fabian cites to Ramadan v. Gonzales, 479 F.3d 646 (9th\nCir. 2007), which held that \"jurisdiction over 'questions of law'\nas defined in the Real ID Act includes not only 'pure' issues of\nstatutory interpretation, but also application of law to\nundisputed facts.\" Id. at 648. In that case, the Ninth Circuit\nheld that it could review the BIA's application of the changed or\nextraordinary circumstances exception to the one-year asylum\ndeadline when the facts are not disputed. Id. That is not our\nlaw and Fabian has not developed any argument as to why we should\nadopt Ramadan's approach, so he has waived this argument. See\nNegeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005).\n Moreover, the Ninth Circuit has acknowledged that it is\n\"alone in interpreting the REAL ID Act to allow for such broad\nreview,\" at least in the context of the changed or extraordinary\ncircumstances exception. Al Ramahi v. Holder, 725 F.3d 1133, 1138\nn.2 (9th Cir. 2013). Most other circuits disagree. Id.\n(collecting cases); see, e.g., Viracacha v. Mukasey, 518 F.3d 511,\n515 (7th Cir. 2008) (\"Because no administrative case can be decided\n\n\n - 8 -\n\f2010) (\"The petitioner's claim that the BIA failed to accord\n\nsufficient weight to the seriousness of his son's asthma is a\n\nfactual claim. Cloaking it in the garb of legal error does not\n\nalter its nature.\"); Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir.\n\n2006) (holding that the \"assertion that the IJ (and thus, the BIA)\n\nmisconstrued the evidence and, in the bargain, relied too heavily\n\non a vague and general report of changed country conditions . . .\n\nis a classic claim of factual error\"); Elysee v. Gonzales, 437\n\nF.3d 221, 223–24 (1st Cir. 2006) (holding that the petitioner's\n\narguments, including that \"unfair weight [was] given to the fact\n\nthat [petitioner's] underlying convictions stemmed from incidents\n\nof domestic violence\" were \"not constitutional claims or questions\n\nof law but attacks on the factual findings made and the balancing\n\nof factors engaged in by the IJ\"); see also Rashad v. Mukasey, 554\n\nF.3d 1, 5 (1st Cir. 2009) (holding that the allegation that the\n\nagency failed to \"fully evaluate\" an aspect of a claim is just\n\nanother attack on weighing facts, \"which is simply a factual claim\n\nmasqueraded as a legal challenge\"). We have consistently held\n\nthat the REAL ID Act does not permit \"review of the BIA's factual\n\nfindings as to credibility, evidentiary weight, and satisfaction\n\nof a correctly framed burden of proof.\" Conteh, 461 F.3d at 63;\n\nsee Larngar v. Holder, 562 F.3d 71, 79 (1st Cir. 2009) (\"Under\n\n\n\nwithout applying some law to some facts, [Ramadan's] understanding\nof § 1252(a)(2)(D) vitiates all clauses in the statute . . . .\").\n\n\n - 9 -\n\fConteh, the question of whether a party has established prima facie\n\neligibility for relief under the CAT could be characterized as, at\n\nbottom . . . a question about whether a party has satisfied a\n\n'correctly framed burden of proof.'\" (citing Conteh, 461 F.3d at\n\n63)).\n\n Fabian does not claim that the agency used an incorrect\n\nlegal standard in assessing his claim for withholding of removal.\n\nRather, he is challenging the factual determination that the\n\nevidence was insufficient to satisfy his burden to show that he\n\nsuffered past persecution and that, even if he had met this burden,\n\nhe had not shown that any past persecution or probability of future\n\npersecution was on account of a protected ground. See Rashad, 554\n\nF.3d at 5-6 (describing the petitioner's burden for withholding of\n\nremoval). Specifically, Fabian is challenging the factual\n\ndetermination by the agency that the threats he received did not\n\nrise to the level of persecution, which we lack jurisdiction to\n\nreview. See Conteh, 461 F.3d at 63; see also Morales-Morales v.\n\nSessions, 857 F.3d 130, 134 (1st Cir. 2017) (\"We treat the rulings\n\nbelow that [the petitioner] has not met his burden of demonstrating\n\npast persecution as factual determinations subject only to the\n\nhighly deferential substantial evidence standard.\" (internal\n\nquotation marks and alterations omitted)); Larngar, 562 F.3d at 76\n\n(\"[T]he REAL ID Act's legislative history, in distinguishing\n\nfactual questions from legal ones, categorizes as factual those\n\n\n - 10 -\n\fquestions that courts would review under the substantial evidence\n\nstandard.\" (internal quotation marks omitted)); Lumataw v. Holder,\n\n582 F.3d 78, 92 (1st Cir. 2009) (reviewing whether the petitioner\n\nhad satisfied his burden for withholding of removal under the\n\n\"substantial evidence\" standard).\n\n \"The presence vel non of either a constitutional or legal\n\nquestion is a matter of substance, not a function of labeling.\"\n\nAyeni, 617 F.3d at 70–71. \"For jurisdiction to attach, the claim\n\nof constitutional or legal error must at least be colorable,\" id.\n\nat 71, which these claims are not.\n\n Fabian also attempts to avoid the jurisdictional bar by\n\narguing that the agency failed to give \"reasoned consideration\" to\n\nwhether Fabian was more likely than not to face future persecution.\n\nThis argument misapprehends both our law and the agency decision.\n\nThe agency gave reasoned consideration to Fabian's application\n\nusing the correct legal standard, and determined that he had not\n\nmet his burden to show that any past persecution or probability of\n\nfuture persecution (if any) would be on account of a protected\n\nground.\n\n Contrary to Fabian's argument, this case is unlike Un v.\n\nGonzales, 415 F.3d 205 (1st Cir. 2005), where the IJ and the BIA\n\n\"failed to address one of the two avenues open to an applicant for\n\nproving entitlement to withholding of removal, i.e., whether he\n\nhad suffered past persecution on account of one of five proscribed\n\n\n - 11 -\n\fgrounds.\" Id. at 208. Nor is this case like Enwonwu v. Gonzales,\n\n438 F.3d 22 (1st Cir. 2006), where the BIA failed to address the\n\nIJ's second ground for its decision when reversing the IJ's grant\n\nof relief under the CAT. Id. at 35. Fabian's argument is nothing\n\nmore than a challenge to the agency's determination that he did\n\nnot present sufficient evidence to meet his burden for withholding\n\nof removal, which we lack jurisdiction to review.\n\nB. Fabian Failed to Exhaust His Particular Social Group Argument\n\n Fabian's argument to this court that the IJ committed\n\nlegal error by rejecting Fabian's formulation of a particular\n\nsocial group fares no better, as Fabian has not exhausted his\n\nadministrative remedies. See Ouk v. Gonzales, 464 F.3d 108, 111\n\n(1st Cir. 2006). We lack jurisdiction to consider an alternative\n\ndescription of a particular social group raised for the first time\n\non petition for review. Perez-Rabanales v. Sessions, 881 F.3d 61,\n\n67 n.1 (1st Cir. 2018).\n\n Before the IJ and the BIA, Fabian did not claim that he\n\nwas part of a particular social group of \"persons who oppose gang\n\nmembership and face continuous threatening behavior after\n\nresisting recruitment, even after informing the police and seeking\n\ntheir assistance and protection.\" He only claimed that he was\n\ntargeted \"[b]ecause they asked [him] to join the gang, and [he]\n\nrefused.\" \"[C]ourts have historically loosened the reins for pro\n\nse parties,\" Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,\n\n\n - 12 -\n\f20 F.3d 503, 506 (1st Cir. 1994), but pro se litigants are not\n\nexempt from exhaustion requirements, see, e.g., Foster v. I.N.S.,\n\n376 F.3d 75, 77-78 (2d Cir. 2004).\n\n The petition for review is dismissed.\n\n\n\n\n - 13 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mauricio FABIAN-SORIANO, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-2052\\n\\n MAURICIO FABIAN-SORIANO,\\n\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR,*\\n UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n PETITION FOR REVIEW OF AN ORDER OF THE\\n BOARD OF IMMIGRATION APPEALS\\n\\n\\n Before\\n\\n Torruella, Selya, and Lynch,\\n Circuit Judges.\\n\\n\\n Megan M. O'Neill, Anne Y. Lee, and Covington & Burling LLP on\\nbrief for petitioner.\\n Robert Michael Stalzer, Trial Attorney, Office of Immigration\\nLitigation, Joseph H. Hunt, Assistant Attorney General, Civil\\nDivision, and Stephen J. Flynn, Assistant Director, Office of\\nImmigration Litigation, on brief for respondent.\\n\\n\\n\\n\\n * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General\\nWilliam P. Barr has been substituted for former Attorney General\\nJefferson B. Sessions, III as the respondent.\\n\\fMay 31, 2019\\n\\f LYNCH, Circuit Judge. The primary issue in this\\n\\nimmigration case is whether the statutory bar in 8 U.S.C.\\n\\n§ 1252(a)(2)(C) strips this court of jurisdiction over Mauricio\\n\\nFabian-Soriano's petition for judicial review of a Board of\\n\\nImmigration Appeals' decision adopting and affirming an\\n\\nImmigration Judge's denial of Fabian's request for withholding of\\n\\nremoval under the Immigration and Nationality Act § 241(b)(3), 8\\n\\nU.S.C. § 1231(b)(3).\\n\\n Because Fabian is removable due to his conviction for a\\n\\nstate crime involving moral turpitude, we lack jurisdiction under\\n\\n8 U.S.C. § 1252(a)(2)(C) to consider Fabian's challenge to the\\n\\ndenial of withholding of removal. He raises no colorable legal or\\n\\nconstitutional claims. We also lack jurisdiction to consider\\n\\nFabian's argument, made for the first time in his brief to us,\\n\\nthat he is part of a particular social group consisting of \\\"persons\\n\\nwho oppose gang membership and face continuous threatening\\n\\nbehavior after resisting recruitment, even after informing the\\n\\npolice and seeking their assistance and protection.\\\" He did not\\n\\nexhaust that argument.\\n\\n We dismiss the petition for review for lack of\\n\\njurisdiction.\\n\\n I.\\n\\n Fabian entered the United States near McAllen, Texas\\n\\nwithout inspection in October 2013. On November 10, 2017, Fabian\\n\\n\\n - 3 -\\n\\fwas convicted of indecent assault and battery on a person fourteen\\n\\nyears or older, in violation of Massachusetts General Laws chapter\\n\\n265, § 13H. On February 7, 2018, officers from U.S. Immigration\\n\\nand Customs Enforcement conducted a routine check to identify\\n\\nremovable aliens at the Suffolk County House of Correction in\\n\\nMassachusetts where Fabian was incarcerated. The ICE check\\n\\nrevealed Fabian's unlawful status, and the Department of Homeland\\n\\nSecurity initiated removal proceedings against him on March 1,\\n\\n2018. DHS charged him with being inadmissible under 8 U.S.C.\\n\\n§ 1182(a)(6)(A)(i), as an alien present in the United States\\n\\nwithout being admitted or paroled, and 8 U.S.C.\\n\\n§ 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a\\n\\ncrime involving moral turpitude.\\n\\n On March 19, 2018, Fabian appeared pro se before an IJ\\n\\nin Massachusetts, who, after granting several continuances at\\n\\nFabian's request, found Fabian removable.1 On March 27, 2018,\\n\\nFabian again appeared pro se before the IJ to submit his\\n\\napplication for asylum, withholding of removal, and protection\\n\\nunder the Convention Against Torture (CAT). In the alternative,\\n\\nFabian requested voluntary departure.\\n\\n\\n\\n\\n 1 At that March 19 hearing, Fabian admitted to entering\\nthe United States without being admitted or paroled after\\ninspection by an immigration officer, and to the indecent assault\\nand battery conviction.\\n\\n\\n - 4 -\\n\\f At a merits hearing on April 26, 2018, Fabian again\\n\\nappeared pro se, and was provided an interpreter. He was the only\\n\\nwitness. He testified that he was fearful of returning to El\\n\\nSalvador because he had resisted recruitment by the MS-13 gang.\\n\\nBeginning in August 2013, he said, MS-13 members sent him four or\\n\\nfive anonymous messages telling him to attend a \\\"jumping\\\"\\n\\ninitiation, during which a new gang recruit is tortured for\\n\\nthirteen seconds. Fabian testified that he received the messages\\n\\n\\\"on [his] phone.\\\" Fabian ignored these messages.\\n\\n On September 15, 2013, Fabian said, four people dressed\\n\\nin black, with ski masks covering their faces and weapons in their\\n\\nhands, knocked on his door. He did not open the door, but hid out\\n\\nof sight. Fabian texted his brother, a police officer in a\\n\\ndifferent town, about what was happening. Fabian's brother\\n\\ncontacted the local police, who sent a patrol car to Fabian's\\n\\nhouse, causing the masked people to hide. When the masked people\\n\\nfinally left the next morning, Fabian fled to his aunt's house,\\n\\nwhere he remained until he came to the United States. He has\\n\\nreceived one anonymous threatening message on Facebook since then.\\n\\nFabian admitted that no one has harmed, mistreated, or threatened\\n\\nhis family in El Salvador, but he still feared that MS-13 would\\n\\nharm or mistreat him if he returned because of his refusal to join\\n\\nthe gang.\\n\\n\\n\\n\\n - 5 -\\n\\f On April 26, 2018, the IJ denied Fabian's applications\\n\\nfor relief and ordered him removed. The IJ found Fabian credible\\n\\nand that he genuinely feared returning to El Salvador. The IJ\\n\\ndenied Fabian's request for withholding of removal because Fabian\\n\\nfailed to meet his burden to establish harm or mistreatment rising\\n\\nto the level of past persecution. The IJ found that the messages\\n\\nfrom MS-13 members were not \\\"so menacing as to cause significant\\n\\nactual suffering and harm,\\\" particularly since Fabian had not\\n\\nprovided \\\"medical or any other documentation that he continued to\\n\\nsuffer in some way from th[o]se threats.\\\" Alternatively, the IJ\\n\\nfound that \\\"even if the sum total of the respondent's past\\n\\nexperiences did amount to persecution, there has been no showing\\n\\n. . . that any past persecution or any well-founded fear or clear\\n\\nprobability is on account of a protected ground.\\\" That is, \\\"there\\n\\n[was] no showing that the threats were on account of his race,\\n\\nreligion, political opinion, social group, or nationality.\\\"\\n\\n Fabian appealed the IJ's decision to the BIA in a pro se\\n\\nfiling. The BIA adopted and affirmed the IJ's decision. The BIA\\n\\nheld that Fabian \\\"ha[d] not made any specific arguments regarding\\n\\nthe [IJ's] decision and ha[d] not meaningfully challenged any of\\n\\nthe findings or conclusions underlying the denial of his\\n\\napplications for relief and protection.\\\" The BIA declined to\\n\\nconsider Fabian's argument that he was eligible for asylum due to\\n\\n\\n\\n\\n - 6 -\\n\\fhis political opinion, because Fabian had not made that argument\\n\\nbefore the IJ.\\n\\n Represented by counsel, Fabian filed a petition for\\n\\nreview of the BIA's decision on October 24, 2018. Fabian was\\n\\nremoved to El Salvador on November 21, 2018. All agree that his\\n\\nremoval does not moot his petition.\\n\\n II.\\n\\n Fabian's petition challenges the denial of withholding\\n\\nof removal on the grounds that (1) he did suffer past persecution,\\n\\n(2) the agency decision failed to give \\\"reasoned consideration\\\" to\\n\\nwhether Fabian was more likely than not to face future persecution,\\n\\nand (3) Fabian described a particular social group that the agency\\n\\nwrongly rejected.2 We lack jurisdiction to consider his arguments.\\n\\nA. We Lack Jurisdiction Over Fabian's Challenge\\n\\n The INA provides that \\\"no court shall have jurisdiction\\n\\nto review any final order of removal against an alien who is\\n\\nremovable by reason of [a conviction for a crime involving moral\\n\\n\\n\\n\\n 2 Before this court, Fabian does not challenge the denial\\nof his request for asylum under INA § 208(a), 8 U.S.C. § 1158(a);\\nfor protection under the CAT, 8 C.F.R. §§ 1208.16(c), 1208.18; or\\nfor voluntary departure under INA § 240B(b), 8 U.S.C. § 1229c(b).\\nFabian also does not challenge the denial of his request for\\nadditional continuances to find an attorney for his merits hearing\\nbefore the IJ. Nor does he revive his argument, made for the first\\ntime before the BIA, that he suffered past persecution or was\\nlikely to face future persecution on account of his political\\nopinion.\\n\\n\\n\\n - 7 -\\n\\fturpitude].\\\"3 8 U.S.C. § 1252(a)(2)(C). Nevertheless, under the\\n\\nREAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 231, 310 (2005),\\n\\nthis court retains jurisdiction to review \\\"constitutional claims\\n\\nor questions of law raised upon a petition for review.\\\" Id.\\n\\n§ 1252(a)(2)(D).\\n\\n Fabian attempts, unsuccessfully, to characterize his\\n\\nclaims as raising colorable issues of law. Under well settled\\n\\nFirst Circuit precedent, where the agency has utilized the correct\\n\\nlegal standards in a reasoned opinion and the petitioner challenges\\n\\na determination about the sufficiency of the evidence to meet his\\n\\nburden of proof, no colorable legal or constitutional claim is\\n\\npresented.4 See Ayeni v. Holder, 617 F.3d 67, 70–71 (1st Cir.\\n\\n\\n 3 Fabian properly concedes that his conviction for\\nindecent assault and battery of a person fourteen years or older\\nis a crime involving moral turpitude.\\n\\n 4 Fabian cites to Ramadan v. Gonzales, 479 F.3d 646 (9th\\nCir. 2007), which held that \\\"jurisdiction over 'questions of law'\\nas defined in the Real ID Act includes not only 'pure' issues of\\nstatutory interpretation, but also application of law to\\nundisputed facts.\\\" Id. at 648. In that case, the Ninth Circuit\\nheld that it could review the BIA's application of the changed or\\nextraordinary circumstances exception to the one-year asylum\\ndeadline when the facts are not disputed. Id. That is not our\\nlaw and Fabian has not developed any argument as to why we should\\nadopt Ramadan's approach, so he has waived this argument. See\\nNegeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005).\\n Moreover, the Ninth Circuit has acknowledged that it is\\n\\\"alone in interpreting the REAL ID Act to allow for such broad\\nreview,\\\" at least in the context of the changed or extraordinary\\ncircumstances exception. Al Ramahi v. Holder, 725 F.3d 1133, 1138\\nn.2 (9th Cir. 2013). Most other circuits disagree. Id.\\n(collecting cases); see, e.g., Viracacha v. Mukasey, 518 F.3d 511,\\n515 (7th Cir. 2008) (\\\"Because no administrative case can be decided\\n\\n\\n - 8 -\\n\\f2010) (\\\"The petitioner's claim that the BIA failed to accord\\n\\nsufficient weight to the seriousness of his son's asthma is a\\n\\nfactual claim. Cloaking it in the garb of legal error does not\\n\\nalter its nature.\\\"); Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir.\\n\\n2006) (holding that the \\\"assertion that the IJ (and thus, the BIA)\\n\\nmisconstrued the evidence and, in the bargain, relied too heavily\\n\\non a vague and general report of changed country conditions . . .\\n\\nis a classic claim of factual error\\\"); Elysee v. Gonzales, 437\\n\\nF.3d 221, 223–24 (1st Cir. 2006) (holding that the petitioner's\\n\\narguments, including that \\\"unfair weight [was] given to the fact\\n\\nthat [petitioner's] underlying convictions stemmed from incidents\\n\\nof domestic violence\\\" were \\\"not constitutional claims or questions\\n\\nof law but attacks on the factual findings made and the balancing\\n\\nof factors engaged in by the IJ\\\"); see also Rashad v. Mukasey, 554\\n\\nF.3d 1, 5 (1st Cir. 2009) (holding that the allegation that the\\n\\nagency failed to \\\"fully evaluate\\\" an aspect of a claim is just\\n\\nanother attack on weighing facts, \\\"which is simply a factual claim\\n\\nmasqueraded as a legal challenge\\\"). We have consistently held\\n\\nthat the REAL ID Act does not permit \\\"review of the BIA's factual\\n\\nfindings as to credibility, evidentiary weight, and satisfaction\\n\\nof a correctly framed burden of proof.\\\" Conteh, 461 F.3d at 63;\\n\\nsee Larngar v. Holder, 562 F.3d 71, 79 (1st Cir. 2009) (\\\"Under\\n\\n\\n\\nwithout applying some law to some facts, [Ramadan's] understanding\\nof § 1252(a)(2)(D) vitiates all clauses in the statute . . . .\\\").\\n\\n\\n - 9 -\\n\\fConteh, the question of whether a party has established prima facie\\n\\neligibility for relief under the CAT could be characterized as, at\\n\\nbottom . . . a question about whether a party has satisfied a\\n\\n'correctly framed burden of proof.'\\\" (citing Conteh, 461 F.3d at\\n\\n63)).\\n\\n Fabian does not claim that the agency used an incorrect\\n\\nlegal standard in assessing his claim for withholding of removal.\\n\\nRather, he is challenging the factual determination that the\\n\\nevidence was insufficient to satisfy his burden to show that he\\n\\nsuffered past persecution and that, even if he had met this burden,\\n\\nhe had not shown that any past persecution or probability of future\\n\\npersecution was on account of a protected ground. See Rashad, 554\\n\\nF.3d at 5-6 (describing the petitioner's burden for withholding of\\n\\nremoval). Specifically, Fabian is challenging the factual\\n\\ndetermination by the agency that the threats he received did not\\n\\nrise to the level of persecution, which we lack jurisdiction to\\n\\nreview. See Conteh, 461 F.3d at 63; see also Morales-Morales v.\\n\\nSessions, 857 F.3d 130, 134 (1st Cir. 2017) (\\\"We treat the rulings\\n\\nbelow that [the petitioner] has not met his burden of demonstrating\\n\\npast persecution as factual determinations subject only to the\\n\\nhighly deferential substantial evidence standard.\\\" (internal\\n\\nquotation marks and alterations omitted)); Larngar, 562 F.3d at 76\\n\\n(\\\"[T]he REAL ID Act's legislative history, in distinguishing\\n\\nfactual questions from legal ones, categorizes as factual those\\n\\n\\n - 10 -\\n\\fquestions that courts would review under the substantial evidence\\n\\nstandard.\\\" (internal quotation marks omitted)); Lumataw v. Holder,\\n\\n582 F.3d 78, 92 (1st Cir. 2009) (reviewing whether the petitioner\\n\\nhad satisfied his burden for withholding of removal under the\\n\\n\\\"substantial evidence\\\" standard).\\n\\n \\\"The presence vel non of either a constitutional or legal\\n\\nquestion is a matter of substance, not a function of labeling.\\\"\\n\\nAyeni, 617 F.3d at 70–71. \\\"For jurisdiction to attach, the claim\\n\\nof constitutional or legal error must at least be colorable,\\\" id.\\n\\nat 71, which these claims are not.\\n\\n Fabian also attempts to avoid the jurisdictional bar by\\n\\narguing that the agency failed to give \\\"reasoned consideration\\\" to\\n\\nwhether Fabian was more likely than not to face future persecution.\\n\\nThis argument misapprehends both our law and the agency decision.\\n\\nThe agency gave reasoned consideration to Fabian's application\\n\\nusing the correct legal standard, and determined that he had not\\n\\nmet his burden to show that any past persecution or probability of\\n\\nfuture persecution (if any) would be on account of a protected\\n\\nground.\\n\\n Contrary to Fabian's argument, this case is unlike Un v.\\n\\nGonzales, 415 F.3d 205 (1st Cir. 2005), where the IJ and the BIA\\n\\n\\\"failed to address one of the two avenues open to an applicant for\\n\\nproving entitlement to withholding of removal, i.e., whether he\\n\\nhad suffered past persecution on account of one of five proscribed\\n\\n\\n - 11 -\\n\\fgrounds.\\\" Id. at 208. Nor is this case like Enwonwu v. Gonzales,\\n\\n438 F.3d 22 (1st Cir. 2006), where the BIA failed to address the\\n\\nIJ's second ground for its decision when reversing the IJ's grant\\n\\nof relief under the CAT. Id. at 35. Fabian's argument is nothing\\n\\nmore than a challenge to the agency's determination that he did\\n\\nnot present sufficient evidence to meet his burden for withholding\\n\\nof removal, which we lack jurisdiction to review.\\n\\nB. Fabian Failed to Exhaust His Particular Social Group Argument\\n\\n Fabian's argument to this court that the IJ committed\\n\\nlegal error by rejecting Fabian's formulation of a particular\\n\\nsocial group fares no better, as Fabian has not exhausted his\\n\\nadministrative remedies. See Ouk v. Gonzales, 464 F.3d 108, 111\\n\\n(1st Cir. 2006). We lack jurisdiction to consider an alternative\\n\\ndescription of a particular social group raised for the first time\\n\\non petition for review. Perez-Rabanales v. Sessions, 881 F.3d 61,\\n\\n67 n.1 (1st Cir. 2018).\\n\\n Before the IJ and the BIA, Fabian did not claim that he\\n\\nwas part of a particular social group of \\\"persons who oppose gang\\n\\nmembership and face continuous threatening behavior after\\n\\nresisting recruitment, even after informing the police and seeking\\n\\ntheir assistance and protection.\\\" He only claimed that he was\\n\\ntargeted \\\"[b]ecause they asked [him] to join the gang, and [he]\\n\\nrefused.\\\" \\\"[C]ourts have historically loosened the reins for pro\\n\\nse parties,\\\" Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,\\n\\n\\n - 12 -\\n\\f20 F.3d 503, 506 (1st Cir. 1994), but pro se litigants are not\\n\\nexempt from exhaustion requirements, see, e.g., Foster v. I.N.S.,\\n\\n376 F.3d 75, 77-78 (2d Cir. 2004).\\n\\n The petition for review is dismissed.\\n\\n\\n\\n\\n - 13 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1977,"cells":{"id":{"kind":"number","value":4625335,"string":"4,625,335"},"name":{"kind":"string","value":"Kristin BLOMQUIST; Kevin Warner, Plaintiffs, Appellants, v. the HORNED DORSET PRIMAVERA, INC.; Universal Insurance Group, Inc., Third Party Plaintiffs, Appellees, Victoria Banucci; Michael Dixon; Conjugal Partnership Banucci-Dixon, Third Party Defendants."},"name_abbreviation":{"kind":"string","value":"Blomquist v. Horned Dorset Primavera, Inc."},"decision_date":{"kind":"string","value":"2019-05-31"},"docket_number":{"kind":"string","value":"17-1856P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Thompson, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 17-1856\\n\\n KRISTIN BLOMQUIST; KEVIN WARNER,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n THE HORNED DORSET PRIMAVERA, INC.;\\n UNIVERSAL INSURANCE GROUP, INC.,\\n\\n Third Party Plaintiffs, Appellees,\\n\\n VICTORIA BANUCCI; MICHAEL DIXON;\\n CONJUGAL PARTNERSHIP BANUCCI-DIXON,\\n\\n Third Party Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Marcos E. López, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Roberto Boneta, with whom Boneta & Nogueras, LLC was on brief,\\nfor appellants.\\n Julio C. Cayere-Quidgley, with whom Héctor J. Ferrer-Ríos,\\nwere on brief, for appellee Universal Insurance Group, Inc.\\n\\n\\n May 31, 2019\\n\\f TORRUELLA, Circuit Judge. A destination wedding in\\n\\nPuerto Rico can be a wonderfully jovial affair. Spirits flow\\n\\nfreely. The sights are beautiful. Guests chat and dance into the\\n\\nearly morning hours under the Caribbean sky. Unchecked joviality,\\n\\nhowever, has an unfortunate tendency of leading to carelessness.\\n\\nAdd an intentionally wet and soapy dancefloor to the equation and\\n\\nsomeone is bound to get hurt. And when someone gets hurt, lawsuits\\n\\nfrequently follow. That is what happened here.\\n\\n Appellants Kristin Blomquist and her husband Kevin\\n\\nWarner filed suit in the District of Puerto Rico against The Horned\\n\\nDorset Primavera Hotel, Inc. (the \\\"Hotel\\\"), claiming the Hotel was\\n\\nnegligent in relation to a slip and fall Blomquist suffered during\\n\\ntheir friends' wedding in the Hotel premises. Blomquist and Warner\\n\\nalleged that the Hotel was liable for Blomquist's injuries because\\n\\nit did not respond in accordance with its heightened responsibility\\n\\nunder Puerto Rico law to the presence of a dangerous condition in\\n\\nits premises -- a wet and soapy dancefloor. The jury disagreed,\\n\\nand the district court entered judgment accordingly.\\n\\n Discontent with this result, Appellants moved for\\n\\njudgment as a matter of law or, alternatively, for a new trial.\\n\\nThe district court denied both motions, finding that the jury's\\n\\nverdict was reasonably supported by the evidence and that the\\n\\nAppellants' motion did not provide basis for either a judgment as\\n\\n\\n -2-\\n\\fa matter of law or a new trial. Blomquist and Warner appealed,\\n\\nand we now affirm.\\n\\n I. BACKGROUND\\n\\nA. Factual Background\\n\\n Appellants Kristin Blomquist and Kevin Warner\\n\\n(\\\"Appellants\\\"), a married couple from New York, traveled to Puerto\\n\\nRico on April 4, 2013, to attend their friends' destination\\n\\nwedding. Upon arriving in Puerto Rico, Blomquist and Warner\\n\\nchecked into the Horned Dorset Primavera Hotel,1 where the wedding\\n\\nceremony, banquet, and reception were to be held on April 6, 2013.\\n\\n The ceremony and banquet were held in one of the Hotel's\\n\\nballrooms. After the banquet, the wedding guests moved outdoors\\n\\nfor the reception. The outdoor reception area consisted of a\\n\\nrectangular space, about thirty-five meters long and eight meters\\n\\nwide, described as a \\\"plaza\\\" (the \\\"plaza\\\") and a slightly elevated\\n\\npool section. The plaza is located in a space between two sets of\\n\\nstairs, one leading up to the second floor of the Hotel's main\\n\\nbuilding, and the other leading up to the elevated pool section.\\n\\nHere, a bar was set up and a temporary dancefloor2 was installed.\\n\\n\\n1 During the course of the proceeding, the Hotel filed for\\nbankruptcy. The bankruptcy court allowed the case to continue\\nwith the Hotel's insurer, Universal Insurance Group, Inc., as the\\ndefendant.\\n\\n2 The temporary dancefloor did not belong to the Hotel. It was\\nrented from an outside vendor by the wedding planner.\\n\\n -3-\\n\\fA DJ set up his equipment in the elevated pool area, which had\\n\\nbeen furnished with tables and chairs. Under the stars, guests\\n\\nenjoyed an open bar and danced to the DJ's tunes.\\n\\n The festivities, however, took a turn for disorder as\\n\\nthe night wore on. The younger crowd of guests that remained at\\n\\nthe reception -- a group of approximately forty-five to fifty\\n\\nindividuals -- began jumping into the pool and transitioning\\n\\nbetween the pool and the nearby dancefloor. At some point between\\n\\n12:00am and 1:30am, following the bride's lead, the guests\\n\\npurposefully wet the dancefloor and began to \\\"slip and slide.\\\"3\\n\\nThey slipped and slid laying on their front sides, backsides, and\\n\\nsideways. A few of the partygoers even began running from the top\\n\\nof the pool area staircase to the dancefloor, in an effort to slide\\n\\nacross it.\\n\\n The Hotel's most senior staff member present, Geraldine\\n\\nThouvenin, witnessed these actions and proceeded to confront the\\n\\ngroom, Michael Dixon, regarding the guests' behavior. Thouvenin\\n\\nwarned the groom that this behavior was not recommended and was\\n\\ndangerous. The groom arrogantly disregarded Thouvenin's warning\\n\\nand, in outright defiance, went to the Hotel's kitchen, retrieved\\n\\nsoap, and poured it on the dancefloor to increase its\\n\\n\\n3 \\\"Slipping and sliding\\\" refers to the deliberate act of a person\\nusing the momentum created by a vertical movement to launch their\\nbody across a flat surface.\\n\\n -4-\\n\\fslipperiness.4 Other wedding guests assisted the groom, pouring\\n\\nwater and soap on the dancefloor to add to the \\\"fun.\\\"\\n\\n At some point after the soap and water were poured,\\n\\nBlomquist left the reception and pool area to change into her\\n\\nbathing suit. When Blomquist returned to the reception area, she\\n\\nslipped and fell on the wet and soapy dancefloor,5 fracturing her\\n\\nwrist and injuring her back.\\n\\nB. Procedural Background\\n\\n On November 1, 2013, Blomquist and Warner filed a\\n\\ncomplaint in the District of Puerto Rico on diversity jurisdiction\\n\\ngrounds against the Hotel and its insurance company, Universal\\n\\nInsurance Group, Inc. Blomquist and Warner alleged that the Hotel\\n\\nwas negligent in failing to provide a safe facility, allowing\\n\\ninherently dangerous conditions to continue, and neglecting to\\n\\nwarn all parties at risk. Blomquist demanded $40,909.18 in medical\\n\\n\\n\\n4 Appellants did not sue the groom. As the district court noted,\\nif anything, Appellants attempted to prevent a third-party\\ncomplaint against the groom and bride to proceed.\\n\\n5 Consonant with the governing standard of review, Appellants'\\ncounsel conceded at oral argument that, for purposes of our review\\nof the district court's denial of their motion for judgment as a\\nmatter of law, we must assume that Blomquist's injuries were the\\nresult of her deliberate attempt to slip and slide on the\\ndancefloor. Appellants' motion for new trial, however, is based\\non the premise that Blomquist's fall was. Thus, for purposes of\\ntheir appeal from the district court's denial of their motion for\\nnew trial, Appellants maintain that Blomquist did not partake in\\nthe slipping and sliding on the dancefloor.\\n\\n -5-\\n\\fdamages; $400,000 for pain and suffering; $200,000 for disability\\n\\nto engage in her normal life and career activities; and $250,000\\n\\nfor mental suffering and anguish. Warner demanded $200,000 for\\n\\nmental pain and anguish.\\n\\n A two-day jury trial was held on October 4 and 5, 2016.6\\n\\nAfter closing arguments, the jury was provided a verdict form with\\n\\nthe following two-prong question (the \\\"verdict question\\\"):\\n\\n Do you find by a preponderance of evidence that The\\n Horned Dorset Primavera was negligent in the operation\\n of the hotel facility at the wedding reception held in\\n April 2013, and that its negligence proximately caused\\n damages to Kristin Blomquist?\\n\\n The jury responded in the negative.7 Accordingly, the\\n\\ndistrict court dismissed Blomquist and Warner's claims and entered\\n\\njudgment in favor of the Hotel and its insurer.\\n\\n Dissatisfied, Blomquist and Warner moved for judgment as\\n\\na matter of law. In the alternative, they requested a new trial.\\n\\nThe district court denied both motions and this appeal ensued.\\n\\n\\n\\n6 Pursuant to the parties' consent, trial was conducted before a\\nmagistrate judge.\\n\\n7 If the jury had responded \\\"Yes\\\" to the verdict question, it was\\nrequired to proceed to additional questions. Specifically, the\\nverdict form asked the jury: whether it found that the Hotel,\\nBlomquist, and/or Warner had acted negligently and if their\\nnegligence constituted the proximate cause of Blomquist's\\ninjuries; what proportion of the negligence that caused damage to\\nBlomquist was attributable to each of these parties; and, how much,\\nif anything, it would award Blomquist and Warner for their physical\\nand emotional injuries.\\n\\n -6-\\n\\f II. DISCUSSION\\n\\nA. Appellants' Motion for Judgment as a Matter of Law\\n\\n We review de novo the denial of a motion for judgment as\\n\\nmatter of law under Rule 50(b) of the Federal Rules of Civil\\n\\nProcedure. Thomas & Betts Corp. v. New Albertson's, Inc., 915\\n\\nF.3d 36, 60 (1st Cir. 2019) (citation omitted). Notwithstanding,\\n\\n\\\"our scrutiny of the jury verdict is tightly circumscribed.\\\"\\n\\nSailor Inc. F/V v. City of Rockland, 428 F.3d 348, 351 (1st Cir.\\n\\n2005) (internal quotation marks omitted). Although we examine the\\n\\nrecord as a whole, the facts are construed in the light most\\n\\nfavorable to the jury verdict, Jennings v. Jones (Jennings I), 499\\n\\nF.3d 2, 3 (1st Cir. 2007), and any inferences are drawn in favor\\n\\nof the non-movant, Jennings v. Jones (Jennings II), 587 F.3d 430,\\n\\n438 (1st Cir. 2009). Moreover, \\\"we do not evaluate the credibility\\n\\nof the witnesses or the weight of the evidence.\\\" Lama v. Borrás,\\n\\n16 F.3d 473, 475 (1st Cir. 1994). In sum, \\\"[w]e must sustain the\\n\\ndistrict court's denial of a Rule 50(b) motion for judgment as a\\n\\nmatter of law unless the evidence . . . could lead a reasonable\\n\\nperson to only one conclusion, namely, that the moving party was\\n\\nentitled to judgment.\\\" Id. at 476 (internal quotation marks\\n\\nomitted).\\n\\n Appellants' motion for judgment as a matter of law was\\n\\ngrounded on their contention that the Hotel was liable because it\\n\\n\\n -7-\\n\\fdid not comply with its \\\"duty to remediate the dangerous condition\\\"\\n\\non the dancefloor despite its knowledge of the \\\"dangerous activity\\\"\\n\\ntaking place thereon. In denying Appellants' motion for judgment\\n\\nas a matter of law, the district court recounted that the jury was\\n\\npresented evidence reflecting that the dangerous condition was\\n\\ncreated by \\\"wedding guests and/or the groom\\\"; that Warner was aware\\n\\nof the condition and even partook in the slipping and sliding; and\\n\\nthat at least one member of the Hotel's staff -- Thouvenin --\\n\\nwarned the groom about the dangers the condition presented. Based\\n\\non this, the district court determined that the evidence \\\"[did]\\n\\nnot point so strongly and overwhelmingly in favor of liability\\n\\nthat no reasonable jury could have returned a verdict for [the\\n\\nHotel and its insurer].\\\"8\\n\\n Appellants filed their suit under Puerto Rico's general\\n\\n\\n\\n8 In fact, the district court went beyond this, concluding that\\n\\\"the Jury determined the Hotel was not negligent,\\\" which implied\\nthat they \\\"found the Hotel staff acted reasonably and prudently\\nunder the circumstances in deciding not to halt the wedding\\nreception\\\" and instead only warning Warner about the dangerous\\ncondition. Because a negative response by the jury to either of\\nthe verdict question's two prongs -- one related to negligence and\\nthe other to causation -- would have freed the Hotel from\\nliability, see P.R. Civ. Code Art. 1802, P.R. Laws Ann. tit. 31,\\n§ 5141 (requiring both negligence and causation for the imposition\\nof liability), the district court's conclusion regarding the\\njury's finding of negligence is not necessarily accurate. It is\\npossible that the jury found that the Hotel was negligent in not\\ntaking further action (e.g., warning every single guest about the\\ndangerous condition) but that its negligence was not the proximate\\ncause of Blomquist's injury.\\n\\n -8-\\n\\ftort statute, Article 1802 of the Puerto Rico Civil Code, P.R.\\n\\nLaws Ann. Tit. 31, § 5141 (\\\"Article 1802\\\"). Article 1802 provides\\n\\nthat \\\"[a] person who by an act or omission causes damage to another\\n\\nthrough fault or negligence shall be obliged to repair the damage\\n\\nso done.\\\" Id. Negligence under Article 1802 is generally defined\\n\\nas \\\"the failure to exercise due diligence to avoid foreseeable\\n\\nrisks.\\\" Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47,\\n\\n50 (1st Cir. 1997). To succeed on a negligence-based tort claim,\\n\\na plaintiff must establish four essential elements: \\\"(1) a duty\\n\\nrequiring the defendant to conform to a certain standard of\\n\\nconduct, (2) a breach of that duty, (3) proof of damage, and (4) a\\n\\ncausal connection between the damage and the tortious conduct.\\\"\\n\\nId. at 50. \\\"[L]iability will only arise if the damages complained\\n\\nof were reasonably foreseeable to the defendant.\\\" Irvine v. Murad\\n\\nSkin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999).\\n\\n Although they are not absolute insurers of their guests'\\n\\nwell-being, hotels have a heightened duty of care towards their\\n\\nguests. Woods-Leber, 124 F.3d at 51. A hotel is required to\\n\\nmaintain its premises in such conditions that its guests will not\\n\\nsuffer foreseeable injuries; in other words, the hotel must ensure\\n\\nthat the areas to which its guests have access are safe. Cotto v.\\n\\nC.M. Ins. Co., 16 P.R. Offic. Trans. 786, 793 (1985). In carrying\\n\\nout its duty of care, a hotel must act as would a \\\"prudent and\\n\\n\\n -9-\\n\\freasonable person under the circumstances.\\\" Vázquez-Filippetti v.\\n\\nBanco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007).\\n\\nAccordingly, a hotel breaches its duty of care, and thus is liable\\n\\nfor an injury caused by a dangerous preexisting condition within\\n\\nthe hotel's premises (e.g., as a result of an accidental fall), if\\n\\n(1) the hotel knew or should have known of the condition, and\\n\\n(2) the hotel did not take the precautions of a prudent and\\n\\nreasonable person to avoid or remedy the foreseeable risks the\\n\\ncondition created. See id. at 49 (holding that a breach of duty\\n\\nonly occurs if a defendant \\\"acted (or failed to act) in a way that\\n\\na reasonably prudent person would foresee as creating undue risk\\\");\\n\\nWoods-Leber, 124 F.3d at 51 (citing Goose v. Hilton Hotels, 79\\n\\nP.R.R. 494, 499 (1956)).\\n\\n Appellants' tort claim is not at all unusual. As we\\n\\nhave noted before, \\\"[c]ases premised on the existence of a\\n\\ndangerous condition often arise from a 'slip-and-fall,' caused by\\n\\na wet or slippery floor, and involve a claim that the business\\n\\nowner was negligent in permitting the condition to remain because\\n\\nit is foreseeable that a wet floor is likely to cause injury.\\\"\\n\\nVázquez-Filippetti, 504 F.3d at 50.\\n\\n For Appellants to succeed on their challenge to the\\n\\ndistrict court's denial of their motion for judgment as a matter\\n\\nof law, they must establish that, based on the evidence presented\\n\\n\\n -10-\\n\\fat trial, a reasonable jury could only conclude: (1) that the Hotel\\n\\nbreached its duty of care towards Blomquist (i.e., that the Hotel\\n\\nwas negligent), and (2) that this breach of duty constituted the\\n\\nproximate cause of Blomquist's injuries.9 See Lama, 16 F.3d at\\n\\n476; Woods-Leber, 124 F.3d at 50. A finding to the negative on\\n\\neither is fatal to Appellants' request for a judgment as a matter\\n\\nof law.\\n\\n Appellants' chances for success slip from their grasp on\\n\\nthe second prong -- the jury was presented sufficient evidence to\\n\\nconclude that the Hotel's breach of duty did not constitute the\\n\\nproximate cause of Blomquist's injuries. Moreover, sufficient\\n\\nevidence was presented for the jury to conclude instead that the\\n\\nproximate cause was Blomquist's deliberate conduct.\\n\\n 1. Breach of Duty\\n\\n Appellants aver that no reasonable jury could have\\n\\nfailed to find that the Hotel was negligent and breached its duty\\n\\nof care under Puerto Rico law in the present case's circumstances;\\n\\nin particular, where the Hotel \\\"allow[ed] its guests to wet and\\n\\nsoap up a dancefloor during a wedding (with an open bar) . . .\\n\\n[and] engage in dangerous behavior on it,\\\" and only advised one of\\n\\n\\n\\n9 The two other elements of a negligence-based tort claim are not\\nat issue here. The Hotel does not dispute its heightened duty of\\ncare under Puerto Rico law or the physical injuries suffered by\\nBlomquist.\\n\\n -11-\\n\\fthe persons present, the groom, to discontinue the dangerous\\n\\nbehavior.\\n\\n They contend that the Hotel had knowledge of the wet and\\n\\nsoapy dancefloor and that, since Blomquist's fall and the resulting\\n\\ninjuries were foreseeable, the Hotel had a duty to warn the guests\\n\\nof the condition of the dancefloor and, furthermore, remedy the\\n\\nsituation by taking measures to put an end to the guests' dangerous\\n\\nbehavior. Appellants rely on the testimony of Hotel employee\\n\\nThouvenin in support of this contention. Thouvenin testified that\\n\\nshe witnessed the wet dancefloor and the guests sliding on it. Up\\n\\nto this point, we can agree with Appellants. Because Thouvenin\\n\\nwas present as an employee of the Hotel, her testimony regarding\\n\\nthe dancefloor's condition and the wedding guests' behavior could\\n\\nonly led a reasonable jury to conclude that the Hotel was aware of\\n\\nthe dangerous condition on the dancefloor and of the dangerous\\n\\nactivity taking place thereon. Similarly, the jury could only\\n\\nhave concluded that the risks presented by the precarious\\n\\ncombination of a wet and soapy surface and the ever-present forces\\n\\nof gravity, such as that of Blomquist's fall, were foreseeable to\\n\\nthe Hotel. Reaching the opposite conclusion would belie basic\\n\\nhuman experience, as reflected in a long line of case law. See\\n\\ngenerally Donald M. Zupanec, Store or Business Premises Slip-and-\\n\\nFall: Modern Status of Rules Requiring Showing of Notice of\\n\\n\\n -12-\\n\\fProprietor of Transitory Interior Condition Allegedly Causing\\n\\nPlaintiff's Fall, 85 A.L.R.3d 1000 (2019) (collecting cases).\\n\\n With these two elements met -- knowledge of the dangerous\\n\\ncondition and a foreseeable risk -- the Hotel had, as a matter of\\n\\nlaw, a duty to address the dancefloor's dangerous condition.\\n\\nVázquez-Filippetti, 504 F.3d at 50. In doing so, the Hotel had to\\n\\nact as would a prudent and reasonable person in those\\n\\ncircumstances, id. at 49, and here is where things start to slide\\n\\ndownhill for Appellants. The inquiry as to whether the Hotel acted\\n\\nas a prudent and reasonable person is case-specific and fact-\\n\\ndependent. See Ocasio-Ocasio v. Guadalupe-Hernández, Civil No.\\n\\n09-1982 (SEC), 2010 WL 5184785, at *3 (D.P.R. Dec. 21, 2010)\\n\\n(citing Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313,\\n\\n322 (1st Cir. 1999) (applying Puerto Rico law)). As such, the\\n\\nquestion of how the Hotel should have responded to the situation\\n\\non the dancefloor is one better left for the fact-finder, in this\\n\\ncase, the jury. Id. This, in tandem with our standard of review\\n\\n-- which requires that we construe the facts in a light most\\n\\nfavorable to the jury verdict and draw any inferences in favor of\\n\\nthe Hotel, Jennings I, 499 F.3d at 3; Jennings II, 587 F.3d at 438\\n\\n-- sets up a slippery slope for Appellants' fall to failure.\\n\\n Thouvenin testified that the only action the Hotel took\\n\\nto prevent the wedding guests from continuing to slip and slide on\\n\\n\\n -13-\\n\\fthe wet dancefloor was warning the groom that such conduct was not\\n\\nsafe.10 We recognize that the extent of this response was, as a\\n\\nmatter of law, lacking and, thus, inappropriate given that\\n\\nThouvenin's warning was directed at a single individual,11 despite\\n\\nthe Hotel having a heightened duty of care towards every guest,\\n\\nincluding Blomquist. See Woods-Leber, 124 F.3d at 51.\\n\\nNotwithstanding, a finding that the Hotel breached its heightened\\n\\nduty of care by not warning all guests, and Blomquist in\\n\\nparticular, is not enough to save Appellants. The jury could have\\n\\nfound that the Hotel did not have a duty of take the further step\\n\\nof remedying the dangerous condition by preventing the guests from\\n\\nusing the dancefloor. This finding, as will become evident below,\\n\\nplays a critical role in our proximate cause analysis.\\n\\n The jury was certainly presented evidence of additional\\n\\nmeasures the Hotel could have taken to prevent the guests from\\n\\nusing the dancefloor. On cross-examination, Appellants' counsel\\n\\n\\n10The content and forcefulness of Thouvenin's warning to the groom\\nis not completely clear on the record. Thouvenin, however, did\\ntestify that in the hospitality business employees cannot use\\nlanguage as forceful as \\\"You stop it right now\\\" when talking to\\nguests.\\n\\n11Our review of the record reveals that this warning was not the\\nfirst or only warning given to the groom about wetting the\\ndancefloor. Before formalities commenced on the day of the\\nwedding, the Hotel's General Manager told the groom that \\\"the\\n[dance]floor cannot be wet.\\\" In fact, the Hotel acquired a tent\\nto place over the dancefloor in order to prevent it from getting\\nwet if it rained.\\n\\n -14-\\n\\fasked Thouvenin if she requested the Hotel's security guard to\\n\\nintervene with the dancing guests or if she turned off the power\\n\\nso there was no light, to which she responded that she did not.\\n\\nThese could seem to be effective measures to us, but the jury might\\n\\nas well have found that they would have been counterproductive.\\n\\nFor example, the crowd of guests could have reacted violently to\\n\\na security guard's intervention, even more so if they were under\\n\\nthe influence of alcohol. As the Hotel's general manager testified\\n\\nbased on his forty-six years of hospitality experience, when guests\\n\\nare provided an open bar they tend to drink more and \\\"lots of\\n\\nthings . . . happen.\\\" Likewise, the jury could have concluded\\n\\nthat turning off the lights would have been ineffective in\\n\\ndeterring the guests' behavior and, furthermore, made the\\n\\ndancefloor more dangerous than it already was by limiting their\\n\\nvision.\\n\\n Based on the foregoing, it was reasonable for the jury\\n\\nto conclude that the Hotel's breach of duty towards Blomquist was\\n\\nlimited to its failure to warn her of the dangerous conditions on\\n\\nthe dancefloor and, by the same token, that the Hotel's heightened\\n\\nduty of care did not require it to take additional measures to\\n\\nprevent her from using the dancefloor.\\n\\n\\n\\n\\n -15-\\n\\f 2. Proximate Cause\\n\\n Under Puerto Rico law, a negligent omission, such as a\\n\\nhotel's failure to carry out its duty of care, may constitute the\\n\\nproximate cause12 of an injury if \\\"in all likelihood, verging on\\n\\ncertainty, the injury could have been avoided if the action omitted\\n\\nwould have been carried out.\\\" Soc. de Gananciales v. G. Padín\\n\\nCo., 17 P.R. Offic. Trans. 111, 124 (1986) (citation omitted).\\n\\nGeneral experience guides the analysis to make such\\n\\ndeterminations. See Díaz v. E.L.A., 18 P.R. Offic. Trans. 473,\\n\\n500 (1987). After a careful review of the record, we find that\\n\\nthe jury was presented sufficient evidence to conclude that\\n\\nBlomquist would have sustained her injuries even if the Hotel had\\n\\nmet its duty of care by warning her of the dangerous condition on\\n\\nthe dancefloor.\\n\\n At trial, the Hotel presented two key pieces of evidence\\n\\nupon which the jury could reach this conclusion: a video showing\\n\\nthe wedding guests' behavior on the dancefloor, and the testimony\\n\\nof Hotel employee Antonio Rosa Miranda (\\\"Rosa\\\"), who was working\\n\\nas a waiter during the wedding reception. The video depicts the\\n\\natmosphere at the dancefloor area during the early morning hours.\\n\\nIt shows guests joyfully slipping and sliding in their bathing\\n\\n\\n\\n12 The legal cause of a tortious injury is also referred to as\\n\\\"adequate cause\\\" in Puerto Rico case law.\\n\\n -16-\\n\\fsuits across the visibly wet13 yet crowded dancefloor, while others\\n\\ndance beside them. Some guests even have friends grab their limbs\\n\\nand spin them on the dancefloor. Despite Blomquist's testimony to\\n\\nthe contrary, based on the video, the jury could have concluded\\n\\nthat Blomquist knew the dancefloor was wet, as she saw the other\\n\\nguests slipping and sliding, but nonetheless attempted to join the\\n\\nfun, which ultimately led to her injuries. That Blomquist changed\\n\\ninto her bathing suit after the dancefloor had been soaked with\\n\\nwater and soap, and thus after the guests had already began to\\n\\nslip and slide therein, as stipulated by the parties, further\\n\\nsupports the belief that she was determined to partake in the\\n\\ndangerous behavior.\\n\\n Rosa's testimony reinforces this notion. He testified\\n\\nthat he saw many of the guests \\\"running and sliding chest first on\\n\\nthe dancefloor.\\\" Among these guests was Blomquist, whom he saw\\n\\nfall while \\\"running or . . . slipp[ing] or . . . try[ing] to slide\\n\\nand [going] . . . sideways.\\\" Rosa was able to single Blomquist\\n\\nout among the crowd of guests on the dancefloor with certainty\\n\\nbecause she was, according to him, \\\"bigger than all the other\\n\\ngirls.\\\"\\n\\n Together, the video and Rosa's testimony provided\\n\\n\\n\\n13The video also shows a guest further wetting the dancefloor by\\nspraying what appears to be champagne into the air.\\n\\n -17-\\n\\fsufficient evidence for a reasonable jury to conclude that the\\n\\nproximate cause of Blomquist's injuries was not the Hotel's breach\\n\\nof its duty of care towards her, but rather Blomquist's deliberate\\n\\nattempt to slip and slide on the wet dancefloor like the other\\n\\nguests. See Soc. de Gananciales v. Jerónimo Corp., 3 P.R. Offic.\\n\\nTrans. 179, 186 (1974) (holding that, under Puerto Rico law,\\n\\nproximate cause is not \\\"every condition [without] which the result\\n\\nwould not have been produced,\\\" but rather only that condition\\n\\n\\\"which ordinarily produces [the result] according to general\\n\\nexperience.\\\"). In other words, sufficient evidence was presented\\n\\nfor the jury to conclude that Blomquist's fall was not the result\\n\\nof an accident attributable to the Hotel's failure to warn her of\\n\\nthe dangerous condition in the dancefloor because, based on common\\n\\nexperience, she would have decided to partake in the slipping and\\n\\nsliding that caused her injuries regardless. See Aquellos\\n\\nAseguradores de Lloyd's London v. Compañía de Desarrollo Comercial\\n\\nde P.R., 126 D.P.R. 251, 264 (1990), 1990 WL 710138 (noting that\\n\\nthere are situations in which \\\"one cause substitutes [and] takes\\n\\n[the] place\\\" of a prior natural cause14 of an injury, thereby\\n\\n\\n\\n14 Puerto Rico law distinguishes natural cause from legal or\\nproximate cause. Natural cause is an expansive concept, covering\\n\\\"any of the conditions necessary to produce an injury,\\\" while legal\\nor proximate cause is only \\\"the condition that ordinarily causes\\nthe damage, according to common experience.\\\" Jiménez v. Pelegrina\\nEspinet, 12 P.R. Offic. Trans. 881, 887 (1982).\\n\\n -18-\\n\\f\\\"break[ing] the causal nexus . . . [and] becoming . . . the only\\n\\nlegal cause of the resulting damage, thus releasing the first actor\\n\\nfrom liability\\\" (citation omitted)); see also Crespo v. H.R.\\n\\nPsychiatric Hosp., Inc., 14 P.R. Offic. Trans. 1027, 1034 (1983)\\n\\n(in the context of wrongful death claim, recognizing the difficulty\\n\\nin preventing a determined individual from performing a self-\\n\\ninjurious act). After all, the jury had already been presented\\n\\nevidence of the ineffectiveness of the Hotel's warnings; even after\\n\\nbeing warned by Thouvenin about the risks of slipping and sliding\\n\\non the dancefloor, the groom continued engaging in this dangerous\\n\\nbehavior.\\n\\n Because the evidence presented at trial could lead a\\n\\nreasonable jury to conclude that the Hotel's failure to meet its\\n\\nduty of care was not the proximate cause of Blomquist's injuries,\\n\\nwe affirm the district court's denial of Appellants' motion for\\n\\njudgment as a matter of law.\\n\\nB. Appellants' Motion for a New Trial\\n\\n We review the district court's denial of Appellants'\\n\\nmotion for a new trial for abuse of discretion. Jennings II, 587\\n\\nF.3d at 435-36 (citing Gasperini v. Ctr. for Humanities, Inc., 518\\n\\nU.S. 415, 435 (1996)). A district court may grant a new trial \\\"if\\n\\nthe verdict is against the weight of the evidence\\\" or if \\\"the\\n\\naction is required in order to prevent injustice.\\\" Id. at 436\\n\\n\\n -19-\\n\\f(quoting Kearns v. Keystone Shipping Co., 863 F.2d 177, 181 (1st\\n\\nCir. 1988)). \\\"On appeal, we owe much deference to the trial\\n\\ncourt's determination. . . . We reverse only if we find that the\\n\\ntrial court has abused its discretion in making its assessment of\\n\\nthe weight of the evidence.\\\" Correia v. Feeney, 620 F.3d 9, 11\\n\\n(1st Cir. 2010).\\n\\n Unlike our review of a district court's decision\\n\\nregarding a motion for judgment as a matter of law, however, our\\n\\n\\\"new trial motion standard of review . . . [does] not requir[e]\\n\\nthat we take the evidence in favor of the verdict.\\\" Jennings II,\\n\\n587 F.3d at 438 (citations omitted).15 Notwithstanding, when it\\n\\ncomes to witness credibility our standard tilts in favor of\\n\\ndeferring to the jury's verdict. See Correia, 620 F.3d at 12 (\\\"It\\n\\nis axiomatic that, absent exceptional circumstances, issues of\\n\\nwitness credibility are to be decided by the jury.\\\" (quoting United\\n\\nStates v. García, 978 F.2d 746, 748 (1st Cir. 1992))). \\\"In\\n\\ngeneral, conflicting testimony or a question as to the credibility\\n\\nof a witness are not sufficient grounds for granting a new trial.\\\"\\n\\n\\n\\n15 This court recently expressed that the standard of review for\\nthe denial of a motion for judgment as a matter of law, which is\\ndeferential to the jury's verdict, may be applied \\\"in reviewing\\nthe denial of a motion for a new trial . . . predicated on a\\nchallenge to the sufficiency of the evidence, [given that] the\\ninquiries merge.\\\" Dimanche v. Mass. Bay Transp. Auth., 893 F.3d\\n1, 8 n.9 (1st Cir. 2018). In the present case, the result would\\nbe the same under either the deferential or traditional standard.\\n\\n -20-\\n\\fGarcía, 978 F.2d at 748 (internal quotation marks omitted).\\n\\n Appellants aver that the district court abused its\\n\\ndiscretion by not considering their arguments challenging Rosa's\\n\\ntestimony that he saw Blomquist dancing and then falling while\\n\\nattempting to slip and slide on the dancefloor. They stress two\\n\\npoints: first, that Rosa testified that Blomquist was wearing a\\n\\nblack bathing suit when she fell, while stipulated photo evidence\\n\\nreflects that she was actually wearing a black dress over a pink\\n\\nbathing suit; and, second, that the testimony was directly\\n\\ncontradicted by Blomquist's testimony that she did not slip and\\n\\nslide on the dancefloor, and was unaware it was slippery.\\n\\n The nature of this challenge sets it up to fail. We\\n\\nhave held that \\\"conflicting testimony or a question as to the\\n\\ncredibility of a witness are [generally] not sufficient grounds\\n\\nfor granting a new trial.\\\" García, 978 F.2d at 748 (citation\\n\\nomitted). This is precisely the type of challenge Appellants\\n\\nraise. They argue that we should strip Rosa's testimony of\\n\\ncredibility, accept Blomquist's version of the events, and\\n\\nconclude that the district court abused its discretion in\\n\\nconcluding that the jury's verdict was not \\\"against the weight of\\n\\nthe evidence.\\\" Jennings II, 587 F.3d at 436. We are not persuaded.\\n\\n The jury was presented with Blomquist's testimony,\\n\\nclaiming that her fall was accidental, and Rosa's testimony, which\\n\\n\\n -21-\\n\\fstrongly suggested that Blomquist's fall was the result of an\\n\\nunsuccessful attempt to slip and slide on the dancefloor. No other\\n\\nwitnesses testified about the specific circumstances of\\n\\nBlomquist's fall. Thus, the jury had to decide whether to accept\\n\\nBlomquist's account of how she fell or Rosa's. That they chose to\\n\\naccept Rosa's, despite the inconsistencies in his testimony\\n\\nregarding Blomquist's attire, is not grounds for a new trial.\\n\\nGarcía, 978 F.2d at 748.\\n\\n We hold that the district court did not abuse its\\n\\ndiscretion in finding that the weight of the evidence supports the\\n\\njury's verdict, and therefore affirm the denial of Appellants'\\n\\nmotion for a new trial.16\\n\\n III. CONCLUSION\\n\\n Based on the foregoing, we affirm the district court's\\n\\ndenial of Appellants' motion for judgment as a matter of law and\\n\\nmotion for a new trial.\\n\\n Affirmed.\\n\\n\\n\\n\\n16Inasmuch as Appellants attempt to raise an argument based on the\\ndoctrine of comparative negligence under Puerto Rico law, they did\\nnot properly flesh it out on appeal and therefore we deem it\\nwaived. See U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n -22-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402588/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4625335/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kristin BLOMQUIST; Kevin Warner, Plaintiffs, Appellants, v. the HORNED DORSET PRIMAVERA, INC.; Universal Insurance Group, Inc., Third Party Plaintiffs, Appellees, Victoria Banucci; Michael Dixon; Conjugal Partnership Banucci-Dixon, Third Party Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-05-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 17-1856\n\n KRISTIN BLOMQUIST; KEVIN WARNER,\n\n Plaintiffs, Appellants,\n\n v.\n\n THE HORNED DORSET PRIMAVERA, INC.;\n UNIVERSAL INSURANCE GROUP, INC.,\n\n Third Party Plaintiffs, Appellees,\n\n VICTORIA BANUCCI; MICHAEL DIXON;\n CONJUGAL PARTNERSHIP BANUCCI-DIXON,\n\n Third Party Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Marcos E. López, U.S. Magistrate Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Roberto Boneta, with whom Boneta & Nogueras, LLC was on brief,\nfor appellants.\n Julio C. Cayere-Quidgley, with whom Héctor J. Ferrer-Ríos,\nwere on brief, for appellee Universal Insurance Group, Inc.\n\n\n May 31, 2019\n\f TORRUELLA, Circuit Judge. A destination wedding in\n\nPuerto Rico can be a wonderfully jovial affair. Spirits flow\n\nfreely. The sights are beautiful. Guests chat and dance into the\n\nearly morning hours under the Caribbean sky. Unchecked joviality,\n\nhowever, has an unfortunate tendency of leading to carelessness.\n\nAdd an intentionally wet and soapy dancefloor to the equation and\n\nsomeone is bound to get hurt. And when someone gets hurt, lawsuits\n\nfrequently follow. That is what happened here.\n\n Appellants Kristin Blomquist and her husband Kevin\n\nWarner filed suit in the District of Puerto Rico against The Horned\n\nDorset Primavera Hotel, Inc. (the \"Hotel\"), claiming the Hotel was\n\nnegligent in relation to a slip and fall Blomquist suffered during\n\ntheir friends' wedding in the Hotel premises. Blomquist and Warner\n\nalleged that the Hotel was liable for Blomquist's injuries because\n\nit did not respond in accordance with its heightened responsibility\n\nunder Puerto Rico law to the presence of a dangerous condition in\n\nits premises -- a wet and soapy dancefloor. The jury disagreed,\n\nand the district court entered judgment accordingly.\n\n Discontent with this result, Appellants moved for\n\njudgment as a matter of law or, alternatively, for a new trial.\n\nThe district court denied both motions, finding that the jury's\n\nverdict was reasonably supported by the evidence and that the\n\nAppellants' motion did not provide basis for either a judgment as\n\n\n -2-\n\fa matter of law or a new trial. Blomquist and Warner appealed,\n\nand we now affirm.\n\n I. BACKGROUND\n\nA. Factual Background\n\n Appellants Kristin Blomquist and Kevin Warner\n\n(\"Appellants\"), a married couple from New York, traveled to Puerto\n\nRico on April 4, 2013, to attend their friends' destination\n\nwedding. Upon arriving in Puerto Rico, Blomquist and Warner\n\nchecked into the Horned Dorset Primavera Hotel,1 where the wedding\n\nceremony, banquet, and reception were to be held on April 6, 2013.\n\n The ceremony and banquet were held in one of the Hotel's\n\nballrooms. After the banquet, the wedding guests moved outdoors\n\nfor the reception. The outdoor reception area consisted of a\n\nrectangular space, about thirty-five meters long and eight meters\n\nwide, described as a \"plaza\" (the \"plaza\") and a slightly elevated\n\npool section. The plaza is located in a space between two sets of\n\nstairs, one leading up to the second floor of the Hotel's main\n\nbuilding, and the other leading up to the elevated pool section.\n\nHere, a bar was set up and a temporary dancefloor2 was installed.\n\n\n1 During the course of the proceeding, the Hotel filed for\nbankruptcy. The bankruptcy court allowed the case to continue\nwith the Hotel's insurer, Universal Insurance Group, Inc., as the\ndefendant.\n\n2 The temporary dancefloor did not belong to the Hotel. It was\nrented from an outside vendor by the wedding planner.\n\n -3-\n\fA DJ set up his equipment in the elevated pool area, which had\n\nbeen furnished with tables and chairs. Under the stars, guests\n\nenjoyed an open bar and danced to the DJ's tunes.\n\n The festivities, however, took a turn for disorder as\n\nthe night wore on. The younger crowd of guests that remained at\n\nthe reception -- a group of approximately forty-five to fifty\n\nindividuals -- began jumping into the pool and transitioning\n\nbetween the pool and the nearby dancefloor. At some point between\n\n12:00am and 1:30am, following the bride's lead, the guests\n\npurposefully wet the dancefloor and began to \"slip and slide.\"3\n\nThey slipped and slid laying on their front sides, backsides, and\n\nsideways. A few of the partygoers even began running from the top\n\nof the pool area staircase to the dancefloor, in an effort to slide\n\nacross it.\n\n The Hotel's most senior staff member present, Geraldine\n\nThouvenin, witnessed these actions and proceeded to confront the\n\ngroom, Michael Dixon, regarding the guests' behavior. Thouvenin\n\nwarned the groom that this behavior was not recommended and was\n\ndangerous. The groom arrogantly disregarded Thouvenin's warning\n\nand, in outright defiance, went to the Hotel's kitchen, retrieved\n\nsoap, and poured it on the dancefloor to increase its\n\n\n3 \"Slipping and sliding\" refers to the deliberate act of a person\nusing the momentum created by a vertical movement to launch their\nbody across a flat surface.\n\n -4-\n\fslipperiness.4 Other wedding guests assisted the groom, pouring\n\nwater and soap on the dancefloor to add to the \"fun.\"\n\n At some point after the soap and water were poured,\n\nBlomquist left the reception and pool area to change into her\n\nbathing suit. When Blomquist returned to the reception area, she\n\nslipped and fell on the wet and soapy dancefloor,5 fracturing her\n\nwrist and injuring her back.\n\nB. Procedural Background\n\n On November 1, 2013, Blomquist and Warner filed a\n\ncomplaint in the District of Puerto Rico on diversity jurisdiction\n\ngrounds against the Hotel and its insurance company, Universal\n\nInsurance Group, Inc. Blomquist and Warner alleged that the Hotel\n\nwas negligent in failing to provide a safe facility, allowing\n\ninherently dangerous conditions to continue, and neglecting to\n\nwarn all parties at risk. Blomquist demanded $40,909.18 in medical\n\n\n\n4 Appellants did not sue the groom. As the district court noted,\nif anything, Appellants attempted to prevent a third-party\ncomplaint against the groom and bride to proceed.\n\n5 Consonant with the governing standard of review, Appellants'\ncounsel conceded at oral argument that, for purposes of our review\nof the district court's denial of their motion for judgment as a\nmatter of law, we must assume that Blomquist's injuries were the\nresult of her deliberate attempt to slip and slide on the\ndancefloor. Appellants' motion for new trial, however, is based\non the premise that Blomquist's fall was. Thus, for purposes of\ntheir appeal from the district court's denial of their motion for\nnew trial, Appellants maintain that Blomquist did not partake in\nthe slipping and sliding on the dancefloor.\n\n -5-\n\fdamages; $400,000 for pain and suffering; $200,000 for disability\n\nto engage in her normal life and career activities; and $250,000\n\nfor mental suffering and anguish. Warner demanded $200,000 for\n\nmental pain and anguish.\n\n A two-day jury trial was held on October 4 and 5, 2016.6\n\nAfter closing arguments, the jury was provided a verdict form with\n\nthe following two-prong question (the \"verdict question\"):\n\n Do you find by a preponderance of evidence that The\n Horned Dorset Primavera was negligent in the operation\n of the hotel facility at the wedding reception held in\n April 2013, and that its negligence proximately caused\n damages to Kristin Blomquist?\n\n The jury responded in the negative.7 Accordingly, the\n\ndistrict court dismissed Blomquist and Warner's claims and entered\n\njudgment in favor of the Hotel and its insurer.\n\n Dissatisfied, Blomquist and Warner moved for judgment as\n\na matter of law. In the alternative, they requested a new trial.\n\nThe district court denied both motions and this appeal ensued.\n\n\n\n6 Pursuant to the parties' consent, trial was conducted before a\nmagistrate judge.\n\n7 If the jury had responded \"Yes\" to the verdict question, it was\nrequired to proceed to additional questions. Specifically, the\nverdict form asked the jury: whether it found that the Hotel,\nBlomquist, and/or Warner had acted negligently and if their\nnegligence constituted the proximate cause of Blomquist's\ninjuries; what proportion of the negligence that caused damage to\nBlomquist was attributable to each of these parties; and, how much,\nif anything, it would award Blomquist and Warner for their physical\nand emotional injuries.\n\n -6-\n\f II. DISCUSSION\n\nA. Appellants' Motion for Judgment as a Matter of Law\n\n We review de novo the denial of a motion for judgment as\n\nmatter of law under Rule 50(b) of the Federal Rules of Civil\n\nProcedure. Thomas & Betts Corp. v. New Albertson's, Inc., 915\n\nF.3d 36, 60 (1st Cir. 2019) (citation omitted). Notwithstanding,\n\n\"our scrutiny of the jury verdict is tightly circumscribed.\"\n\nSailor Inc. F/V v. City of Rockland, 428 F.3d 348, 351 (1st Cir.\n\n2005) (internal quotation marks omitted). Although we examine the\n\nrecord as a whole, the facts are construed in the light most\n\nfavorable to the jury verdict, Jennings v. Jones (Jennings I), 499\n\nF.3d 2, 3 (1st Cir. 2007), and any inferences are drawn in favor\n\nof the non-movant, Jennings v. Jones (Jennings II), 587 F.3d 430,\n\n438 (1st Cir. 2009). Moreover, \"we do not evaluate the credibility\n\nof the witnesses or the weight of the evidence.\" Lama v. Borrás,\n\n16 F.3d 473, 475 (1st Cir. 1994). In sum, \"[w]e must sustain the\n\ndistrict court's denial of a Rule 50(b) motion for judgment as a\n\nmatter of law unless the evidence . . . could lead a reasonable\n\nperson to only one conclusion, namely, that the moving party was\n\nentitled to judgment.\" Id. at 476 (internal quotation marks\n\nomitted).\n\n Appellants' motion for judgment as a matter of law was\n\ngrounded on their contention that the Hotel was liable because it\n\n\n -7-\n\fdid not comply with its \"duty to remediate the dangerous condition\"\n\non the dancefloor despite its knowledge of the \"dangerous activity\"\n\ntaking place thereon. In denying Appellants' motion for judgment\n\nas a matter of law, the district court recounted that the jury was\n\npresented evidence reflecting that the dangerous condition was\n\ncreated by \"wedding guests and/or the groom\"; that Warner was aware\n\nof the condition and even partook in the slipping and sliding; and\n\nthat at least one member of the Hotel's staff -- Thouvenin --\n\nwarned the groom about the dangers the condition presented. Based\n\non this, the district court determined that the evidence \"[did]\n\nnot point so strongly and overwhelmingly in favor of liability\n\nthat no reasonable jury could have returned a verdict for [the\n\nHotel and its insurer].\"8\n\n Appellants filed their suit under Puerto Rico's general\n\n\n\n8 In fact, the district court went beyond this, concluding that\n\"the Jury determined the Hotel was not negligent,\" which implied\nthat they \"found the Hotel staff acted reasonably and prudently\nunder the circumstances in deciding not to halt the wedding\nreception\" and instead only warning Warner about the dangerous\ncondition. Because a negative response by the jury to either of\nthe verdict question's two prongs -- one related to negligence and\nthe other to causation -- would have freed the Hotel from\nliability, see P.R. Civ. Code Art. 1802, P.R. Laws Ann. tit. 31,\n§ 5141 (requiring both negligence and causation for the imposition\nof liability), the district court's conclusion regarding the\njury's finding of negligence is not necessarily accurate. It is\npossible that the jury found that the Hotel was negligent in not\ntaking further action (e.g., warning every single guest about the\ndangerous condition) but that its negligence was not the proximate\ncause of Blomquist's injury.\n\n -8-\n\ftort statute, Article 1802 of the Puerto Rico Civil Code, P.R.\n\nLaws Ann. Tit. 31, § 5141 (\"Article 1802\"). Article 1802 provides\n\nthat \"[a] person who by an act or omission causes damage to another\n\nthrough fault or negligence shall be obliged to repair the damage\n\nso done.\" Id. Negligence under Article 1802 is generally defined\n\nas \"the failure to exercise due diligence to avoid foreseeable\n\nrisks.\" Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47,\n\n50 (1st Cir. 1997). To succeed on a negligence-based tort claim,\n\na plaintiff must establish four essential elements: \"(1) a duty\n\nrequiring the defendant to conform to a certain standard of\n\nconduct, (2) a breach of that duty, (3) proof of damage, and (4) a\n\ncausal connection between the damage and the tortious conduct.\"\n\nId. at 50. \"[L]iability will only arise if the damages complained\n\nof were reasonably foreseeable to the defendant.\" Irvine v. Murad\n\nSkin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999).\n\n Although they are not absolute insurers of their guests'\n\nwell-being, hotels have a heightened duty of care towards their\n\nguests. Woods-Leber, 124 F.3d at 51. A hotel is required to\n\nmaintain its premises in such conditions that its guests will not\n\nsuffer foreseeable injuries; in other words, the hotel must ensure\n\nthat the areas to which its guests have access are safe. Cotto v.\n\nC.M. Ins. Co., 16 P.R. Offic. Trans. 786, 793 (1985). In carrying\n\nout its duty of care, a hotel must act as would a \"prudent and\n\n\n -9-\n\freasonable person under the circumstances.\" Vázquez-Filippetti v.\n\nBanco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007).\n\nAccordingly, a hotel breaches its duty of care, and thus is liable\n\nfor an injury caused by a dangerous preexisting condition within\n\nthe hotel's premises (e.g., as a result of an accidental fall), if\n\n(1) the hotel knew or should have known of the condition, and\n\n(2) the hotel did not take the precautions of a prudent and\n\nreasonable person to avoid or remedy the foreseeable risks the\n\ncondition created. See id. at 49 (holding that a breach of duty\n\nonly occurs if a defendant \"acted (or failed to act) in a way that\n\na reasonably prudent person would foresee as creating undue risk\");\n\nWoods-Leber, 124 F.3d at 51 (citing Goose v. Hilton Hotels, 79\n\nP.R.R. 494, 499 (1956)).\n\n Appellants' tort claim is not at all unusual. As we\n\nhave noted before, \"[c]ases premised on the existence of a\n\ndangerous condition often arise from a 'slip-and-fall,' caused by\n\na wet or slippery floor, and involve a claim that the business\n\nowner was negligent in permitting the condition to remain because\n\nit is foreseeable that a wet floor is likely to cause injury.\"\n\nVázquez-Filippetti, 504 F.3d at 50.\n\n For Appellants to succeed on their challenge to the\n\ndistrict court's denial of their motion for judgment as a matter\n\nof law, they must establish that, based on the evidence presented\n\n\n -10-\n\fat trial, a reasonable jury could only conclude: (1) that the Hotel\n\nbreached its duty of care towards Blomquist (i.e., that the Hotel\n\nwas negligent), and (2) that this breach of duty constituted the\n\nproximate cause of Blomquist's injuries.9 See Lama, 16 F.3d at\n\n476; Woods-Leber, 124 F.3d at 50. A finding to the negative on\n\neither is fatal to Appellants' request for a judgment as a matter\n\nof law.\n\n Appellants' chances for success slip from their grasp on\n\nthe second prong -- the jury was presented sufficient evidence to\n\nconclude that the Hotel's breach of duty did not constitute the\n\nproximate cause of Blomquist's injuries. Moreover, sufficient\n\nevidence was presented for the jury to conclude instead that the\n\nproximate cause was Blomquist's deliberate conduct.\n\n 1. Breach of Duty\n\n Appellants aver that no reasonable jury could have\n\nfailed to find that the Hotel was negligent and breached its duty\n\nof care under Puerto Rico law in the present case's circumstances;\n\nin particular, where the Hotel \"allow[ed] its guests to wet and\n\nsoap up a dancefloor during a wedding (with an open bar) . . .\n\n[and] engage in dangerous behavior on it,\" and only advised one of\n\n\n\n9 The two other elements of a negligence-based tort claim are not\nat issue here. The Hotel does not dispute its heightened duty of\ncare under Puerto Rico law or the physical injuries suffered by\nBlomquist.\n\n -11-\n\fthe persons present, the groom, to discontinue the dangerous\n\nbehavior.\n\n They contend that the Hotel had knowledge of the wet and\n\nsoapy dancefloor and that, since Blomquist's fall and the resulting\n\ninjuries were foreseeable, the Hotel had a duty to warn the guests\n\nof the condition of the dancefloor and, furthermore, remedy the\n\nsituation by taking measures to put an end to the guests' dangerous\n\nbehavior. Appellants rely on the testimony of Hotel employee\n\nThouvenin in support of this contention. Thouvenin testified that\n\nshe witnessed the wet dancefloor and the guests sliding on it. Up\n\nto this point, we can agree with Appellants. Because Thouvenin\n\nwas present as an employee of the Hotel, her testimony regarding\n\nthe dancefloor's condition and the wedding guests' behavior could\n\nonly led a reasonable jury to conclude that the Hotel was aware of\n\nthe dangerous condition on the dancefloor and of the dangerous\n\nactivity taking place thereon. Similarly, the jury could only\n\nhave concluded that the risks presented by the precarious\n\ncombination of a wet and soapy surface and the ever-present forces\n\nof gravity, such as that of Blomquist's fall, were foreseeable to\n\nthe Hotel. Reaching the opposite conclusion would belie basic\n\nhuman experience, as reflected in a long line of case law. See\n\ngenerally Donald M. Zupanec, Store or Business Premises Slip-and-\n\nFall: Modern Status of Rules Requiring Showing of Notice of\n\n\n -12-\n\fProprietor of Transitory Interior Condition Allegedly Causing\n\nPlaintiff's Fall, 85 A.L.R.3d 1000 (2019) (collecting cases).\n\n With these two elements met -- knowledge of the dangerous\n\ncondition and a foreseeable risk -- the Hotel had, as a matter of\n\nlaw, a duty to address the dancefloor's dangerous condition.\n\nVázquez-Filippetti, 504 F.3d at 50. In doing so, the Hotel had to\n\nact as would a prudent and reasonable person in those\n\ncircumstances, id. at 49, and here is where things start to slide\n\ndownhill for Appellants. The inquiry as to whether the Hotel acted\n\nas a prudent and reasonable person is case-specific and fact-\n\ndependent. See Ocasio-Ocasio v. Guadalupe-Hernández, Civil No.\n\n09-1982 (SEC), 2010 WL 5184785, at *3 (D.P.R. Dec. 21, 2010)\n\n(citing Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313,\n\n322 (1st Cir. 1999) (applying Puerto Rico law)). As such, the\n\nquestion of how the Hotel should have responded to the situation\n\non the dancefloor is one better left for the fact-finder, in this\n\ncase, the jury. Id. This, in tandem with our standard of review\n\n-- which requires that we construe the facts in a light most\n\nfavorable to the jury verdict and draw any inferences in favor of\n\nthe Hotel, Jennings I, 499 F.3d at 3; Jennings II, 587 F.3d at 438\n\n-- sets up a slippery slope for Appellants' fall to failure.\n\n Thouvenin testified that the only action the Hotel took\n\nto prevent the wedding guests from continuing to slip and slide on\n\n\n -13-\n\fthe wet dancefloor was warning the groom that such conduct was not\n\nsafe.10 We recognize that the extent of this response was, as a\n\nmatter of law, lacking and, thus, inappropriate given that\n\nThouvenin's warning was directed at a single individual,11 despite\n\nthe Hotel having a heightened duty of care towards every guest,\n\nincluding Blomquist. See Woods-Leber, 124 F.3d at 51.\n\nNotwithstanding, a finding that the Hotel breached its heightened\n\nduty of care by not warning all guests, and Blomquist in\n\nparticular, is not enough to save Appellants. The jury could have\n\nfound that the Hotel did not have a duty of take the further step\n\nof remedying the dangerous condition by preventing the guests from\n\nusing the dancefloor. This finding, as will become evident below,\n\nplays a critical role in our proximate cause analysis.\n\n The jury was certainly presented evidence of additional\n\nmeasures the Hotel could have taken to prevent the guests from\n\nusing the dancefloor. On cross-examination, Appellants' counsel\n\n\n10The content and forcefulness of Thouvenin's warning to the groom\nis not completely clear on the record. Thouvenin, however, did\ntestify that in the hospitality business employees cannot use\nlanguage as forceful as \"You stop it right now\" when talking to\nguests.\n\n11Our review of the record reveals that this warning was not the\nfirst or only warning given to the groom about wetting the\ndancefloor. Before formalities commenced on the day of the\nwedding, the Hotel's General Manager told the groom that \"the\n[dance]floor cannot be wet.\" In fact, the Hotel acquired a tent\nto place over the dancefloor in order to prevent it from getting\nwet if it rained.\n\n -14-\n\fasked Thouvenin if she requested the Hotel's security guard to\n\nintervene with the dancing guests or if she turned off the power\n\nso there was no light, to which she responded that she did not.\n\nThese could seem to be effective measures to us, but the jury might\n\nas well have found that they would have been counterproductive.\n\nFor example, the crowd of guests could have reacted violently to\n\na security guard's intervention, even more so if they were under\n\nthe influence of alcohol. As the Hotel's general manager testified\n\nbased on his forty-six years of hospitality experience, when guests\n\nare provided an open bar they tend to drink more and \"lots of\n\nthings . . . happen.\" Likewise, the jury could have concluded\n\nthat turning off the lights would have been ineffective in\n\ndeterring the guests' behavior and, furthermore, made the\n\ndancefloor more dangerous than it already was by limiting their\n\nvision.\n\n Based on the foregoing, it was reasonable for the jury\n\nto conclude that the Hotel's breach of duty towards Blomquist was\n\nlimited to its failure to warn her of the dangerous conditions on\n\nthe dancefloor and, by the same token, that the Hotel's heightened\n\nduty of care did not require it to take additional measures to\n\nprevent her from using the dancefloor.\n\n\n\n\n -15-\n\f 2. Proximate Cause\n\n Under Puerto Rico law, a negligent omission, such as a\n\nhotel's failure to carry out its duty of care, may constitute the\n\nproximate cause12 of an injury if \"in all likelihood, verging on\n\ncertainty, the injury could have been avoided if the action omitted\n\nwould have been carried out.\" Soc. de Gananciales v. G. Padín\n\nCo., 17 P.R. Offic. Trans. 111, 124 (1986) (citation omitted).\n\nGeneral experience guides the analysis to make such\n\ndeterminations. See Díaz v. E.L.A., 18 P.R. Offic. Trans. 473,\n\n500 (1987). After a careful review of the record, we find that\n\nthe jury was presented sufficient evidence to conclude that\n\nBlomquist would have sustained her injuries even if the Hotel had\n\nmet its duty of care by warning her of the dangerous condition on\n\nthe dancefloor.\n\n At trial, the Hotel presented two key pieces of evidence\n\nupon which the jury could reach this conclusion: a video showing\n\nthe wedding guests' behavior on the dancefloor, and the testimony\n\nof Hotel employee Antonio Rosa Miranda (\"Rosa\"), who was working\n\nas a waiter during the wedding reception. The video depicts the\n\natmosphere at the dancefloor area during the early morning hours.\n\nIt shows guests joyfully slipping and sliding in their bathing\n\n\n\n12 The legal cause of a tortious injury is also referred to as\n\"adequate cause\" in Puerto Rico case law.\n\n -16-\n\fsuits across the visibly wet13 yet crowded dancefloor, while others\n\ndance beside them. Some guests even have friends grab their limbs\n\nand spin them on the dancefloor. Despite Blomquist's testimony to\n\nthe contrary, based on the video, the jury could have concluded\n\nthat Blomquist knew the dancefloor was wet, as she saw the other\n\nguests slipping and sliding, but nonetheless attempted to join the\n\nfun, which ultimately led to her injuries. That Blomquist changed\n\ninto her bathing suit after the dancefloor had been soaked with\n\nwater and soap, and thus after the guests had already began to\n\nslip and slide therein, as stipulated by the parties, further\n\nsupports the belief that she was determined to partake in the\n\ndangerous behavior.\n\n Rosa's testimony reinforces this notion. He testified\n\nthat he saw many of the guests \"running and sliding chest first on\n\nthe dancefloor.\" Among these guests was Blomquist, whom he saw\n\nfall while \"running or . . . slipp[ing] or . . . try[ing] to slide\n\nand [going] . . . sideways.\" Rosa was able to single Blomquist\n\nout among the crowd of guests on the dancefloor with certainty\n\nbecause she was, according to him, \"bigger than all the other\n\ngirls.\"\n\n Together, the video and Rosa's testimony provided\n\n\n\n13The video also shows a guest further wetting the dancefloor by\nspraying what appears to be champagne into the air.\n\n -17-\n\fsufficient evidence for a reasonable jury to conclude that the\n\nproximate cause of Blomquist's injuries was not the Hotel's breach\n\nof its duty of care towards her, but rather Blomquist's deliberate\n\nattempt to slip and slide on the wet dancefloor like the other\n\nguests. See Soc. de Gananciales v. Jerónimo Corp., 3 P.R. Offic.\n\nTrans. 179, 186 (1974) (holding that, under Puerto Rico law,\n\nproximate cause is not \"every condition [without] which the result\n\nwould not have been produced,\" but rather only that condition\n\n\"which ordinarily produces [the result] according to general\n\nexperience.\"). In other words, sufficient evidence was presented\n\nfor the jury to conclude that Blomquist's fall was not the result\n\nof an accident attributable to the Hotel's failure to warn her of\n\nthe dangerous condition in the dancefloor because, based on common\n\nexperience, she would have decided to partake in the slipping and\n\nsliding that caused her injuries regardless. See Aquellos\n\nAseguradores de Lloyd's London v. Compañía de Desarrollo Comercial\n\nde P.R., 126 D.P.R. 251, 264 (1990), 1990 WL 710138 (noting that\n\nthere are situations in which \"one cause substitutes [and] takes\n\n[the] place\" of a prior natural cause14 of an injury, thereby\n\n\n\n14 Puerto Rico law distinguishes natural cause from legal or\nproximate cause. Natural cause is an expansive concept, covering\n\"any of the conditions necessary to produce an injury,\" while legal\nor proximate cause is only \"the condition that ordinarily causes\nthe damage, according to common experience.\" Jiménez v. Pelegrina\nEspinet, 12 P.R. Offic. Trans. 881, 887 (1982).\n\n -18-\n\f\"break[ing] the causal nexus . . . [and] becoming . . . the only\n\nlegal cause of the resulting damage, thus releasing the first actor\n\nfrom liability\" (citation omitted)); see also Crespo v. H.R.\n\nPsychiatric Hosp., Inc., 14 P.R. Offic. Trans. 1027, 1034 (1983)\n\n(in the context of wrongful death claim, recognizing the difficulty\n\nin preventing a determined individual from performing a self-\n\ninjurious act). After all, the jury had already been presented\n\nevidence of the ineffectiveness of the Hotel's warnings; even after\n\nbeing warned by Thouvenin about the risks of slipping and sliding\n\non the dancefloor, the groom continued engaging in this dangerous\n\nbehavior.\n\n Because the evidence presented at trial could lead a\n\nreasonable jury to conclude that the Hotel's failure to meet its\n\nduty of care was not the proximate cause of Blomquist's injuries,\n\nwe affirm the district court's denial of Appellants' motion for\n\njudgment as a matter of law.\n\nB. Appellants' Motion for a New Trial\n\n We review the district court's denial of Appellants'\n\nmotion for a new trial for abuse of discretion. Jennings II, 587\n\nF.3d at 435-36 (citing Gasperini v. Ctr. for Humanities, Inc., 518\n\nU.S. 415, 435 (1996)). A district court may grant a new trial \"if\n\nthe verdict is against the weight of the evidence\" or if \"the\n\naction is required in order to prevent injustice.\" Id. at 436\n\n\n -19-\n\f(quoting Kearns v. Keystone Shipping Co., 863 F.2d 177, 181 (1st\n\nCir. 1988)). \"On appeal, we owe much deference to the trial\n\ncourt's determination. . . . We reverse only if we find that the\n\ntrial court has abused its discretion in making its assessment of\n\nthe weight of the evidence.\" Correia v. Feeney, 620 F.3d 9, 11\n\n(1st Cir. 2010).\n\n Unlike our review of a district court's decision\n\nregarding a motion for judgment as a matter of law, however, our\n\n\"new trial motion standard of review . . . [does] not requir[e]\n\nthat we take the evidence in favor of the verdict.\" Jennings II,\n\n587 F.3d at 438 (citations omitted).15 Notwithstanding, when it\n\ncomes to witness credibility our standard tilts in favor of\n\ndeferring to the jury's verdict. See Correia, 620 F.3d at 12 (\"It\n\nis axiomatic that, absent exceptional circumstances, issues of\n\nwitness credibility are to be decided by the jury.\" (quoting United\n\nStates v. García, 978 F.2d 746, 748 (1st Cir. 1992))). \"In\n\ngeneral, conflicting testimony or a question as to the credibility\n\nof a witness are not sufficient grounds for granting a new trial.\"\n\n\n\n15 This court recently expressed that the standard of review for\nthe denial of a motion for judgment as a matter of law, which is\ndeferential to the jury's verdict, may be applied \"in reviewing\nthe denial of a motion for a new trial . . . predicated on a\nchallenge to the sufficiency of the evidence, [given that] the\ninquiries merge.\" Dimanche v. Mass. Bay Transp. Auth., 893 F.3d\n1, 8 n.9 (1st Cir. 2018). In the present case, the result would\nbe the same under either the deferential or traditional standard.\n\n -20-\n\fGarcía, 978 F.2d at 748 (internal quotation marks omitted).\n\n Appellants aver that the district court abused its\n\ndiscretion by not considering their arguments challenging Rosa's\n\ntestimony that he saw Blomquist dancing and then falling while\n\nattempting to slip and slide on the dancefloor. They stress two\n\npoints: first, that Rosa testified that Blomquist was wearing a\n\nblack bathing suit when she fell, while stipulated photo evidence\n\nreflects that she was actually wearing a black dress over a pink\n\nbathing suit; and, second, that the testimony was directly\n\ncontradicted by Blomquist's testimony that she did not slip and\n\nslide on the dancefloor, and was unaware it was slippery.\n\n The nature of this challenge sets it up to fail. We\n\nhave held that \"conflicting testimony or a question as to the\n\ncredibility of a witness are [generally] not sufficient grounds\n\nfor granting a new trial.\" García, 978 F.2d at 748 (citation\n\nomitted). This is precisely the type of challenge Appellants\n\nraise. They argue that we should strip Rosa's testimony of\n\ncredibility, accept Blomquist's version of the events, and\n\nconclude that the district court abused its discretion in\n\nconcluding that the jury's verdict was not \"against the weight of\n\nthe evidence.\" Jennings II, 587 F.3d at 436. We are not persuaded.\n\n The jury was presented with Blomquist's testimony,\n\nclaiming that her fall was accidental, and Rosa's testimony, which\n\n\n -21-\n\fstrongly suggested that Blomquist's fall was the result of an\n\nunsuccessful attempt to slip and slide on the dancefloor. No other\n\nwitnesses testified about the specific circumstances of\n\nBlomquist's fall. Thus, the jury had to decide whether to accept\n\nBlomquist's account of how she fell or Rosa's. That they chose to\n\naccept Rosa's, despite the inconsistencies in his testimony\n\nregarding Blomquist's attire, is not grounds for a new trial.\n\nGarcía, 978 F.2d at 748.\n\n We hold that the district court did not abuse its\n\ndiscretion in finding that the weight of the evidence supports the\n\njury's verdict, and therefore affirm the denial of Appellants'\n\nmotion for a new trial.16\n\n III. CONCLUSION\n\n Based on the foregoing, we affirm the district court's\n\ndenial of Appellants' motion for judgment as a matter of law and\n\nmotion for a new trial.\n\n Affirmed.\n\n\n\n\n16Inasmuch as Appellants attempt to raise an argument based on the\ndoctrine of comparative negligence under Puerto Rico law, they did\nnot properly flesh it out on appeal and therefore we deem it\nwaived. See U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n -22-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kristin BLOMQUIST; Kevin Warner, Plaintiffs, Appellants, v. the HORNED DORSET PRIMAVERA, INC.; Universal Insurance Group, Inc., Third Party Plaintiffs, Appellees, Victoria Banucci; Michael Dixon; Conjugal Partnership Banucci-Dixon, Third Party Defendants.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-05-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 17-1856\\n\\n KRISTIN BLOMQUIST; KEVIN WARNER,\\n\\n Plaintiffs, Appellants,\\n\\n v.\\n\\n THE HORNED DORSET PRIMAVERA, INC.;\\n UNIVERSAL INSURANCE GROUP, INC.,\\n\\n Third Party Plaintiffs, Appellees,\\n\\n VICTORIA BANUCCI; MICHAEL DIXON;\\n CONJUGAL PARTNERSHIP BANUCCI-DIXON,\\n\\n Third Party Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Marcos E. López, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Roberto Boneta, with whom Boneta & Nogueras, LLC was on brief,\\nfor appellants.\\n Julio C. Cayere-Quidgley, with whom Héctor J. Ferrer-Ríos,\\nwere on brief, for appellee Universal Insurance Group, Inc.\\n\\n\\n May 31, 2019\\n\\f TORRUELLA, Circuit Judge. A destination wedding in\\n\\nPuerto Rico can be a wonderfully jovial affair. Spirits flow\\n\\nfreely. The sights are beautiful. Guests chat and dance into the\\n\\nearly morning hours under the Caribbean sky. Unchecked joviality,\\n\\nhowever, has an unfortunate tendency of leading to carelessness.\\n\\nAdd an intentionally wet and soapy dancefloor to the equation and\\n\\nsomeone is bound to get hurt. And when someone gets hurt, lawsuits\\n\\nfrequently follow. That is what happened here.\\n\\n Appellants Kristin Blomquist and her husband Kevin\\n\\nWarner filed suit in the District of Puerto Rico against The Horned\\n\\nDorset Primavera Hotel, Inc. (the \\\"Hotel\\\"), claiming the Hotel was\\n\\nnegligent in relation to a slip and fall Blomquist suffered during\\n\\ntheir friends' wedding in the Hotel premises. Blomquist and Warner\\n\\nalleged that the Hotel was liable for Blomquist's injuries because\\n\\nit did not respond in accordance with its heightened responsibility\\n\\nunder Puerto Rico law to the presence of a dangerous condition in\\n\\nits premises -- a wet and soapy dancefloor. The jury disagreed,\\n\\nand the district court entered judgment accordingly.\\n\\n Discontent with this result, Appellants moved for\\n\\njudgment as a matter of law or, alternatively, for a new trial.\\n\\nThe district court denied both motions, finding that the jury's\\n\\nverdict was reasonably supported by the evidence and that the\\n\\nAppellants' motion did not provide basis for either a judgment as\\n\\n\\n -2-\\n\\fa matter of law or a new trial. Blomquist and Warner appealed,\\n\\nand we now affirm.\\n\\n I. BACKGROUND\\n\\nA. Factual Background\\n\\n Appellants Kristin Blomquist and Kevin Warner\\n\\n(\\\"Appellants\\\"), a married couple from New York, traveled to Puerto\\n\\nRico on April 4, 2013, to attend their friends' destination\\n\\nwedding. Upon arriving in Puerto Rico, Blomquist and Warner\\n\\nchecked into the Horned Dorset Primavera Hotel,1 where the wedding\\n\\nceremony, banquet, and reception were to be held on April 6, 2013.\\n\\n The ceremony and banquet were held in one of the Hotel's\\n\\nballrooms. After the banquet, the wedding guests moved outdoors\\n\\nfor the reception. The outdoor reception area consisted of a\\n\\nrectangular space, about thirty-five meters long and eight meters\\n\\nwide, described as a \\\"plaza\\\" (the \\\"plaza\\\") and a slightly elevated\\n\\npool section. The plaza is located in a space between two sets of\\n\\nstairs, one leading up to the second floor of the Hotel's main\\n\\nbuilding, and the other leading up to the elevated pool section.\\n\\nHere, a bar was set up and a temporary dancefloor2 was installed.\\n\\n\\n1 During the course of the proceeding, the Hotel filed for\\nbankruptcy. The bankruptcy court allowed the case to continue\\nwith the Hotel's insurer, Universal Insurance Group, Inc., as the\\ndefendant.\\n\\n2 The temporary dancefloor did not belong to the Hotel. It was\\nrented from an outside vendor by the wedding planner.\\n\\n -3-\\n\\fA DJ set up his equipment in the elevated pool area, which had\\n\\nbeen furnished with tables and chairs. Under the stars, guests\\n\\nenjoyed an open bar and danced to the DJ's tunes.\\n\\n The festivities, however, took a turn for disorder as\\n\\nthe night wore on. The younger crowd of guests that remained at\\n\\nthe reception -- a group of approximately forty-five to fifty\\n\\nindividuals -- began jumping into the pool and transitioning\\n\\nbetween the pool and the nearby dancefloor. At some point between\\n\\n12:00am and 1:30am, following the bride's lead, the guests\\n\\npurposefully wet the dancefloor and began to \\\"slip and slide.\\\"3\\n\\nThey slipped and slid laying on their front sides, backsides, and\\n\\nsideways. A few of the partygoers even began running from the top\\n\\nof the pool area staircase to the dancefloor, in an effort to slide\\n\\nacross it.\\n\\n The Hotel's most senior staff member present, Geraldine\\n\\nThouvenin, witnessed these actions and proceeded to confront the\\n\\ngroom, Michael Dixon, regarding the guests' behavior. Thouvenin\\n\\nwarned the groom that this behavior was not recommended and was\\n\\ndangerous. The groom arrogantly disregarded Thouvenin's warning\\n\\nand, in outright defiance, went to the Hotel's kitchen, retrieved\\n\\nsoap, and poured it on the dancefloor to increase its\\n\\n\\n3 \\\"Slipping and sliding\\\" refers to the deliberate act of a person\\nusing the momentum created by a vertical movement to launch their\\nbody across a flat surface.\\n\\n -4-\\n\\fslipperiness.4 Other wedding guests assisted the groom, pouring\\n\\nwater and soap on the dancefloor to add to the \\\"fun.\\\"\\n\\n At some point after the soap and water were poured,\\n\\nBlomquist left the reception and pool area to change into her\\n\\nbathing suit. When Blomquist returned to the reception area, she\\n\\nslipped and fell on the wet and soapy dancefloor,5 fracturing her\\n\\nwrist and injuring her back.\\n\\nB. Procedural Background\\n\\n On November 1, 2013, Blomquist and Warner filed a\\n\\ncomplaint in the District of Puerto Rico on diversity jurisdiction\\n\\ngrounds against the Hotel and its insurance company, Universal\\n\\nInsurance Group, Inc. Blomquist and Warner alleged that the Hotel\\n\\nwas negligent in failing to provide a safe facility, allowing\\n\\ninherently dangerous conditions to continue, and neglecting to\\n\\nwarn all parties at risk. Blomquist demanded $40,909.18 in medical\\n\\n\\n\\n4 Appellants did not sue the groom. As the district court noted,\\nif anything, Appellants attempted to prevent a third-party\\ncomplaint against the groom and bride to proceed.\\n\\n5 Consonant with the governing standard of review, Appellants'\\ncounsel conceded at oral argument that, for purposes of our review\\nof the district court's denial of their motion for judgment as a\\nmatter of law, we must assume that Blomquist's injuries were the\\nresult of her deliberate attempt to slip and slide on the\\ndancefloor. Appellants' motion for new trial, however, is based\\non the premise that Blomquist's fall was. Thus, for purposes of\\ntheir appeal from the district court's denial of their motion for\\nnew trial, Appellants maintain that Blomquist did not partake in\\nthe slipping and sliding on the dancefloor.\\n\\n -5-\\n\\fdamages; $400,000 for pain and suffering; $200,000 for disability\\n\\nto engage in her normal life and career activities; and $250,000\\n\\nfor mental suffering and anguish. Warner demanded $200,000 for\\n\\nmental pain and anguish.\\n\\n A two-day jury trial was held on October 4 and 5, 2016.6\\n\\nAfter closing arguments, the jury was provided a verdict form with\\n\\nthe following two-prong question (the \\\"verdict question\\\"):\\n\\n Do you find by a preponderance of evidence that The\\n Horned Dorset Primavera was negligent in the operation\\n of the hotel facility at the wedding reception held in\\n April 2013, and that its negligence proximately caused\\n damages to Kristin Blomquist?\\n\\n The jury responded in the negative.7 Accordingly, the\\n\\ndistrict court dismissed Blomquist and Warner's claims and entered\\n\\njudgment in favor of the Hotel and its insurer.\\n\\n Dissatisfied, Blomquist and Warner moved for judgment as\\n\\na matter of law. In the alternative, they requested a new trial.\\n\\nThe district court denied both motions and this appeal ensued.\\n\\n\\n\\n6 Pursuant to the parties' consent, trial was conducted before a\\nmagistrate judge.\\n\\n7 If the jury had responded \\\"Yes\\\" to the verdict question, it was\\nrequired to proceed to additional questions. Specifically, the\\nverdict form asked the jury: whether it found that the Hotel,\\nBlomquist, and/or Warner had acted negligently and if their\\nnegligence constituted the proximate cause of Blomquist's\\ninjuries; what proportion of the negligence that caused damage to\\nBlomquist was attributable to each of these parties; and, how much,\\nif anything, it would award Blomquist and Warner for their physical\\nand emotional injuries.\\n\\n -6-\\n\\f II. DISCUSSION\\n\\nA. Appellants' Motion for Judgment as a Matter of Law\\n\\n We review de novo the denial of a motion for judgment as\\n\\nmatter of law under Rule 50(b) of the Federal Rules of Civil\\n\\nProcedure. Thomas & Betts Corp. v. New Albertson's, Inc., 915\\n\\nF.3d 36, 60 (1st Cir. 2019) (citation omitted). Notwithstanding,\\n\\n\\\"our scrutiny of the jury verdict is tightly circumscribed.\\\"\\n\\nSailor Inc. F/V v. City of Rockland, 428 F.3d 348, 351 (1st Cir.\\n\\n2005) (internal quotation marks omitted). Although we examine the\\n\\nrecord as a whole, the facts are construed in the light most\\n\\nfavorable to the jury verdict, Jennings v. Jones (Jennings I), 499\\n\\nF.3d 2, 3 (1st Cir. 2007), and any inferences are drawn in favor\\n\\nof the non-movant, Jennings v. Jones (Jennings II), 587 F.3d 430,\\n\\n438 (1st Cir. 2009). Moreover, \\\"we do not evaluate the credibility\\n\\nof the witnesses or the weight of the evidence.\\\" Lama v. Borrás,\\n\\n16 F.3d 473, 475 (1st Cir. 1994). In sum, \\\"[w]e must sustain the\\n\\ndistrict court's denial of a Rule 50(b) motion for judgment as a\\n\\nmatter of law unless the evidence . . . could lead a reasonable\\n\\nperson to only one conclusion, namely, that the moving party was\\n\\nentitled to judgment.\\\" Id. at 476 (internal quotation marks\\n\\nomitted).\\n\\n Appellants' motion for judgment as a matter of law was\\n\\ngrounded on their contention that the Hotel was liable because it\\n\\n\\n -7-\\n\\fdid not comply with its \\\"duty to remediate the dangerous condition\\\"\\n\\non the dancefloor despite its knowledge of the \\\"dangerous activity\\\"\\n\\ntaking place thereon. In denying Appellants' motion for judgment\\n\\nas a matter of law, the district court recounted that the jury was\\n\\npresented evidence reflecting that the dangerous condition was\\n\\ncreated by \\\"wedding guests and/or the groom\\\"; that Warner was aware\\n\\nof the condition and even partook in the slipping and sliding; and\\n\\nthat at least one member of the Hotel's staff -- Thouvenin --\\n\\nwarned the groom about the dangers the condition presented. Based\\n\\non this, the district court determined that the evidence \\\"[did]\\n\\nnot point so strongly and overwhelmingly in favor of liability\\n\\nthat no reasonable jury could have returned a verdict for [the\\n\\nHotel and its insurer].\\\"8\\n\\n Appellants filed their suit under Puerto Rico's general\\n\\n\\n\\n8 In fact, the district court went beyond this, concluding that\\n\\\"the Jury determined the Hotel was not negligent,\\\" which implied\\nthat they \\\"found the Hotel staff acted reasonably and prudently\\nunder the circumstances in deciding not to halt the wedding\\nreception\\\" and instead only warning Warner about the dangerous\\ncondition. Because a negative response by the jury to either of\\nthe verdict question's two prongs -- one related to negligence and\\nthe other to causation -- would have freed the Hotel from\\nliability, see P.R. Civ. Code Art. 1802, P.R. Laws Ann. tit. 31,\\n§ 5141 (requiring both negligence and causation for the imposition\\nof liability), the district court's conclusion regarding the\\njury's finding of negligence is not necessarily accurate. It is\\npossible that the jury found that the Hotel was negligent in not\\ntaking further action (e.g., warning every single guest about the\\ndangerous condition) but that its negligence was not the proximate\\ncause of Blomquist's injury.\\n\\n -8-\\n\\ftort statute, Article 1802 of the Puerto Rico Civil Code, P.R.\\n\\nLaws Ann. Tit. 31, § 5141 (\\\"Article 1802\\\"). Article 1802 provides\\n\\nthat \\\"[a] person who by an act or omission causes damage to another\\n\\nthrough fault or negligence shall be obliged to repair the damage\\n\\nso done.\\\" Id. Negligence under Article 1802 is generally defined\\n\\nas \\\"the failure to exercise due diligence to avoid foreseeable\\n\\nrisks.\\\" Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47,\\n\\n50 (1st Cir. 1997). To succeed on a negligence-based tort claim,\\n\\na plaintiff must establish four essential elements: \\\"(1) a duty\\n\\nrequiring the defendant to conform to a certain standard of\\n\\nconduct, (2) a breach of that duty, (3) proof of damage, and (4) a\\n\\ncausal connection between the damage and the tortious conduct.\\\"\\n\\nId. at 50. \\\"[L]iability will only arise if the damages complained\\n\\nof were reasonably foreseeable to the defendant.\\\" Irvine v. Murad\\n\\nSkin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999).\\n\\n Although they are not absolute insurers of their guests'\\n\\nwell-being, hotels have a heightened duty of care towards their\\n\\nguests. Woods-Leber, 124 F.3d at 51. A hotel is required to\\n\\nmaintain its premises in such conditions that its guests will not\\n\\nsuffer foreseeable injuries; in other words, the hotel must ensure\\n\\nthat the areas to which its guests have access are safe. Cotto v.\\n\\nC.M. Ins. Co., 16 P.R. Offic. Trans. 786, 793 (1985). In carrying\\n\\nout its duty of care, a hotel must act as would a \\\"prudent and\\n\\n\\n -9-\\n\\freasonable person under the circumstances.\\\" Vázquez-Filippetti v.\\n\\nBanco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007).\\n\\nAccordingly, a hotel breaches its duty of care, and thus is liable\\n\\nfor an injury caused by a dangerous preexisting condition within\\n\\nthe hotel's premises (e.g., as a result of an accidental fall), if\\n\\n(1) the hotel knew or should have known of the condition, and\\n\\n(2) the hotel did not take the precautions of a prudent and\\n\\nreasonable person to avoid or remedy the foreseeable risks the\\n\\ncondition created. See id. at 49 (holding that a breach of duty\\n\\nonly occurs if a defendant \\\"acted (or failed to act) in a way that\\n\\na reasonably prudent person would foresee as creating undue risk\\\");\\n\\nWoods-Leber, 124 F.3d at 51 (citing Goose v. Hilton Hotels, 79\\n\\nP.R.R. 494, 499 (1956)).\\n\\n Appellants' tort claim is not at all unusual. As we\\n\\nhave noted before, \\\"[c]ases premised on the existence of a\\n\\ndangerous condition often arise from a 'slip-and-fall,' caused by\\n\\na wet or slippery floor, and involve a claim that the business\\n\\nowner was negligent in permitting the condition to remain because\\n\\nit is foreseeable that a wet floor is likely to cause injury.\\\"\\n\\nVázquez-Filippetti, 504 F.3d at 50.\\n\\n For Appellants to succeed on their challenge to the\\n\\ndistrict court's denial of their motion for judgment as a matter\\n\\nof law, they must establish that, based on the evidence presented\\n\\n\\n -10-\\n\\fat trial, a reasonable jury could only conclude: (1) that the Hotel\\n\\nbreached its duty of care towards Blomquist (i.e., that the Hotel\\n\\nwas negligent), and (2) that this breach of duty constituted the\\n\\nproximate cause of Blomquist's injuries.9 See Lama, 16 F.3d at\\n\\n476; Woods-Leber, 124 F.3d at 50. A finding to the negative on\\n\\neither is fatal to Appellants' request for a judgment as a matter\\n\\nof law.\\n\\n Appellants' chances for success slip from their grasp on\\n\\nthe second prong -- the jury was presented sufficient evidence to\\n\\nconclude that the Hotel's breach of duty did not constitute the\\n\\nproximate cause of Blomquist's injuries. Moreover, sufficient\\n\\nevidence was presented for the jury to conclude instead that the\\n\\nproximate cause was Blomquist's deliberate conduct.\\n\\n 1. Breach of Duty\\n\\n Appellants aver that no reasonable jury could have\\n\\nfailed to find that the Hotel was negligent and breached its duty\\n\\nof care under Puerto Rico law in the present case's circumstances;\\n\\nin particular, where the Hotel \\\"allow[ed] its guests to wet and\\n\\nsoap up a dancefloor during a wedding (with an open bar) . . .\\n\\n[and] engage in dangerous behavior on it,\\\" and only advised one of\\n\\n\\n\\n9 The two other elements of a negligence-based tort claim are not\\nat issue here. The Hotel does not dispute its heightened duty of\\ncare under Puerto Rico law or the physical injuries suffered by\\nBlomquist.\\n\\n -11-\\n\\fthe persons present, the groom, to discontinue the dangerous\\n\\nbehavior.\\n\\n They contend that the Hotel had knowledge of the wet and\\n\\nsoapy dancefloor and that, since Blomquist's fall and the resulting\\n\\ninjuries were foreseeable, the Hotel had a duty to warn the guests\\n\\nof the condition of the dancefloor and, furthermore, remedy the\\n\\nsituation by taking measures to put an end to the guests' dangerous\\n\\nbehavior. Appellants rely on the testimony of Hotel employee\\n\\nThouvenin in support of this contention. Thouvenin testified that\\n\\nshe witnessed the wet dancefloor and the guests sliding on it. Up\\n\\nto this point, we can agree with Appellants. Because Thouvenin\\n\\nwas present as an employee of the Hotel, her testimony regarding\\n\\nthe dancefloor's condition and the wedding guests' behavior could\\n\\nonly led a reasonable jury to conclude that the Hotel was aware of\\n\\nthe dangerous condition on the dancefloor and of the dangerous\\n\\nactivity taking place thereon. Similarly, the jury could only\\n\\nhave concluded that the risks presented by the precarious\\n\\ncombination of a wet and soapy surface and the ever-present forces\\n\\nof gravity, such as that of Blomquist's fall, were foreseeable to\\n\\nthe Hotel. Reaching the opposite conclusion would belie basic\\n\\nhuman experience, as reflected in a long line of case law. See\\n\\ngenerally Donald M. Zupanec, Store or Business Premises Slip-and-\\n\\nFall: Modern Status of Rules Requiring Showing of Notice of\\n\\n\\n -12-\\n\\fProprietor of Transitory Interior Condition Allegedly Causing\\n\\nPlaintiff's Fall, 85 A.L.R.3d 1000 (2019) (collecting cases).\\n\\n With these two elements met -- knowledge of the dangerous\\n\\ncondition and a foreseeable risk -- the Hotel had, as a matter of\\n\\nlaw, a duty to address the dancefloor's dangerous condition.\\n\\nVázquez-Filippetti, 504 F.3d at 50. In doing so, the Hotel had to\\n\\nact as would a prudent and reasonable person in those\\n\\ncircumstances, id. at 49, and here is where things start to slide\\n\\ndownhill for Appellants. The inquiry as to whether the Hotel acted\\n\\nas a prudent and reasonable person is case-specific and fact-\\n\\ndependent. See Ocasio-Ocasio v. Guadalupe-Hernández, Civil No.\\n\\n09-1982 (SEC), 2010 WL 5184785, at *3 (D.P.R. Dec. 21, 2010)\\n\\n(citing Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313,\\n\\n322 (1st Cir. 1999) (applying Puerto Rico law)). As such, the\\n\\nquestion of how the Hotel should have responded to the situation\\n\\non the dancefloor is one better left for the fact-finder, in this\\n\\ncase, the jury. Id. This, in tandem with our standard of review\\n\\n-- which requires that we construe the facts in a light most\\n\\nfavorable to the jury verdict and draw any inferences in favor of\\n\\nthe Hotel, Jennings I, 499 F.3d at 3; Jennings II, 587 F.3d at 438\\n\\n-- sets up a slippery slope for Appellants' fall to failure.\\n\\n Thouvenin testified that the only action the Hotel took\\n\\nto prevent the wedding guests from continuing to slip and slide on\\n\\n\\n -13-\\n\\fthe wet dancefloor was warning the groom that such conduct was not\\n\\nsafe.10 We recognize that the extent of this response was, as a\\n\\nmatter of law, lacking and, thus, inappropriate given that\\n\\nThouvenin's warning was directed at a single individual,11 despite\\n\\nthe Hotel having a heightened duty of care towards every guest,\\n\\nincluding Blomquist. See Woods-Leber, 124 F.3d at 51.\\n\\nNotwithstanding, a finding that the Hotel breached its heightened\\n\\nduty of care by not warning all guests, and Blomquist in\\n\\nparticular, is not enough to save Appellants. The jury could have\\n\\nfound that the Hotel did not have a duty of take the further step\\n\\nof remedying the dangerous condition by preventing the guests from\\n\\nusing the dancefloor. This finding, as will become evident below,\\n\\nplays a critical role in our proximate cause analysis.\\n\\n The jury was certainly presented evidence of additional\\n\\nmeasures the Hotel could have taken to prevent the guests from\\n\\nusing the dancefloor. On cross-examination, Appellants' counsel\\n\\n\\n10The content and forcefulness of Thouvenin's warning to the groom\\nis not completely clear on the record. Thouvenin, however, did\\ntestify that in the hospitality business employees cannot use\\nlanguage as forceful as \\\"You stop it right now\\\" when talking to\\nguests.\\n\\n11Our review of the record reveals that this warning was not the\\nfirst or only warning given to the groom about wetting the\\ndancefloor. Before formalities commenced on the day of the\\nwedding, the Hotel's General Manager told the groom that \\\"the\\n[dance]floor cannot be wet.\\\" In fact, the Hotel acquired a tent\\nto place over the dancefloor in order to prevent it from getting\\nwet if it rained.\\n\\n -14-\\n\\fasked Thouvenin if she requested the Hotel's security guard to\\n\\nintervene with the dancing guests or if she turned off the power\\n\\nso there was no light, to which she responded that she did not.\\n\\nThese could seem to be effective measures to us, but the jury might\\n\\nas well have found that they would have been counterproductive.\\n\\nFor example, the crowd of guests could have reacted violently to\\n\\na security guard's intervention, even more so if they were under\\n\\nthe influence of alcohol. As the Hotel's general manager testified\\n\\nbased on his forty-six years of hospitality experience, when guests\\n\\nare provided an open bar they tend to drink more and \\\"lots of\\n\\nthings . . . happen.\\\" Likewise, the jury could have concluded\\n\\nthat turning off the lights would have been ineffective in\\n\\ndeterring the guests' behavior and, furthermore, made the\\n\\ndancefloor more dangerous than it already was by limiting their\\n\\nvision.\\n\\n Based on the foregoing, it was reasonable for the jury\\n\\nto conclude that the Hotel's breach of duty towards Blomquist was\\n\\nlimited to its failure to warn her of the dangerous conditions on\\n\\nthe dancefloor and, by the same token, that the Hotel's heightened\\n\\nduty of care did not require it to take additional measures to\\n\\nprevent her from using the dancefloor.\\n\\n\\n\\n\\n -15-\\n\\f 2. Proximate Cause\\n\\n Under Puerto Rico law, a negligent omission, such as a\\n\\nhotel's failure to carry out its duty of care, may constitute the\\n\\nproximate cause12 of an injury if \\\"in all likelihood, verging on\\n\\ncertainty, the injury could have been avoided if the action omitted\\n\\nwould have been carried out.\\\" Soc. de Gananciales v. G. Padín\\n\\nCo., 17 P.R. Offic. Trans. 111, 124 (1986) (citation omitted).\\n\\nGeneral experience guides the analysis to make such\\n\\ndeterminations. See Díaz v. E.L.A., 18 P.R. Offic. Trans. 473,\\n\\n500 (1987). After a careful review of the record, we find that\\n\\nthe jury was presented sufficient evidence to conclude that\\n\\nBlomquist would have sustained her injuries even if the Hotel had\\n\\nmet its duty of care by warning her of the dangerous condition on\\n\\nthe dancefloor.\\n\\n At trial, the Hotel presented two key pieces of evidence\\n\\nupon which the jury could reach this conclusion: a video showing\\n\\nthe wedding guests' behavior on the dancefloor, and the testimony\\n\\nof Hotel employee Antonio Rosa Miranda (\\\"Rosa\\\"), who was working\\n\\nas a waiter during the wedding reception. The video depicts the\\n\\natmosphere at the dancefloor area during the early morning hours.\\n\\nIt shows guests joyfully slipping and sliding in their bathing\\n\\n\\n\\n12 The legal cause of a tortious injury is also referred to as\\n\\\"adequate cause\\\" in Puerto Rico case law.\\n\\n -16-\\n\\fsuits across the visibly wet13 yet crowded dancefloor, while others\\n\\ndance beside them. Some guests even have friends grab their limbs\\n\\nand spin them on the dancefloor. Despite Blomquist's testimony to\\n\\nthe contrary, based on the video, the jury could have concluded\\n\\nthat Blomquist knew the dancefloor was wet, as she saw the other\\n\\nguests slipping and sliding, but nonetheless attempted to join the\\n\\nfun, which ultimately led to her injuries. That Blomquist changed\\n\\ninto her bathing suit after the dancefloor had been soaked with\\n\\nwater and soap, and thus after the guests had already began to\\n\\nslip and slide therein, as stipulated by the parties, further\\n\\nsupports the belief that she was determined to partake in the\\n\\ndangerous behavior.\\n\\n Rosa's testimony reinforces this notion. He testified\\n\\nthat he saw many of the guests \\\"running and sliding chest first on\\n\\nthe dancefloor.\\\" Among these guests was Blomquist, whom he saw\\n\\nfall while \\\"running or . . . slipp[ing] or . . . try[ing] to slide\\n\\nand [going] . . . sideways.\\\" Rosa was able to single Blomquist\\n\\nout among the crowd of guests on the dancefloor with certainty\\n\\nbecause she was, according to him, \\\"bigger than all the other\\n\\ngirls.\\\"\\n\\n Together, the video and Rosa's testimony provided\\n\\n\\n\\n13The video also shows a guest further wetting the dancefloor by\\nspraying what appears to be champagne into the air.\\n\\n -17-\\n\\fsufficient evidence for a reasonable jury to conclude that the\\n\\nproximate cause of Blomquist's injuries was not the Hotel's breach\\n\\nof its duty of care towards her, but rather Blomquist's deliberate\\n\\nattempt to slip and slide on the wet dancefloor like the other\\n\\nguests. See Soc. de Gananciales v. Jerónimo Corp., 3 P.R. Offic.\\n\\nTrans. 179, 186 (1974) (holding that, under Puerto Rico law,\\n\\nproximate cause is not \\\"every condition [without] which the result\\n\\nwould not have been produced,\\\" but rather only that condition\\n\\n\\\"which ordinarily produces [the result] according to general\\n\\nexperience.\\\"). In other words, sufficient evidence was presented\\n\\nfor the jury to conclude that Blomquist's fall was not the result\\n\\nof an accident attributable to the Hotel's failure to warn her of\\n\\nthe dangerous condition in the dancefloor because, based on common\\n\\nexperience, she would have decided to partake in the slipping and\\n\\nsliding that caused her injuries regardless. See Aquellos\\n\\nAseguradores de Lloyd's London v. Compañía de Desarrollo Comercial\\n\\nde P.R., 126 D.P.R. 251, 264 (1990), 1990 WL 710138 (noting that\\n\\nthere are situations in which \\\"one cause substitutes [and] takes\\n\\n[the] place\\\" of a prior natural cause14 of an injury, thereby\\n\\n\\n\\n14 Puerto Rico law distinguishes natural cause from legal or\\nproximate cause. Natural cause is an expansive concept, covering\\n\\\"any of the conditions necessary to produce an injury,\\\" while legal\\nor proximate cause is only \\\"the condition that ordinarily causes\\nthe damage, according to common experience.\\\" Jiménez v. Pelegrina\\nEspinet, 12 P.R. Offic. Trans. 881, 887 (1982).\\n\\n -18-\\n\\f\\\"break[ing] the causal nexus . . . [and] becoming . . . the only\\n\\nlegal cause of the resulting damage, thus releasing the first actor\\n\\nfrom liability\\\" (citation omitted)); see also Crespo v. H.R.\\n\\nPsychiatric Hosp., Inc., 14 P.R. Offic. Trans. 1027, 1034 (1983)\\n\\n(in the context of wrongful death claim, recognizing the difficulty\\n\\nin preventing a determined individual from performing a self-\\n\\ninjurious act). After all, the jury had already been presented\\n\\nevidence of the ineffectiveness of the Hotel's warnings; even after\\n\\nbeing warned by Thouvenin about the risks of slipping and sliding\\n\\non the dancefloor, the groom continued engaging in this dangerous\\n\\nbehavior.\\n\\n Because the evidence presented at trial could lead a\\n\\nreasonable jury to conclude that the Hotel's failure to meet its\\n\\nduty of care was not the proximate cause of Blomquist's injuries,\\n\\nwe affirm the district court's denial of Appellants' motion for\\n\\njudgment as a matter of law.\\n\\nB. Appellants' Motion for a New Trial\\n\\n We review the district court's denial of Appellants'\\n\\nmotion for a new trial for abuse of discretion. Jennings II, 587\\n\\nF.3d at 435-36 (citing Gasperini v. Ctr. for Humanities, Inc., 518\\n\\nU.S. 415, 435 (1996)). A district court may grant a new trial \\\"if\\n\\nthe verdict is against the weight of the evidence\\\" or if \\\"the\\n\\naction is required in order to prevent injustice.\\\" Id. at 436\\n\\n\\n -19-\\n\\f(quoting Kearns v. Keystone Shipping Co., 863 F.2d 177, 181 (1st\\n\\nCir. 1988)). \\\"On appeal, we owe much deference to the trial\\n\\ncourt's determination. . . . We reverse only if we find that the\\n\\ntrial court has abused its discretion in making its assessment of\\n\\nthe weight of the evidence.\\\" Correia v. Feeney, 620 F.3d 9, 11\\n\\n(1st Cir. 2010).\\n\\n Unlike our review of a district court's decision\\n\\nregarding a motion for judgment as a matter of law, however, our\\n\\n\\\"new trial motion standard of review . . . [does] not requir[e]\\n\\nthat we take the evidence in favor of the verdict.\\\" Jennings II,\\n\\n587 F.3d at 438 (citations omitted).15 Notwithstanding, when it\\n\\ncomes to witness credibility our standard tilts in favor of\\n\\ndeferring to the jury's verdict. See Correia, 620 F.3d at 12 (\\\"It\\n\\nis axiomatic that, absent exceptional circumstances, issues of\\n\\nwitness credibility are to be decided by the jury.\\\" (quoting United\\n\\nStates v. García, 978 F.2d 746, 748 (1st Cir. 1992))). \\\"In\\n\\ngeneral, conflicting testimony or a question as to the credibility\\n\\nof a witness are not sufficient grounds for granting a new trial.\\\"\\n\\n\\n\\n15 This court recently expressed that the standard of review for\\nthe denial of a motion for judgment as a matter of law, which is\\ndeferential to the jury's verdict, may be applied \\\"in reviewing\\nthe denial of a motion for a new trial . . . predicated on a\\nchallenge to the sufficiency of the evidence, [given that] the\\ninquiries merge.\\\" Dimanche v. Mass. Bay Transp. Auth., 893 F.3d\\n1, 8 n.9 (1st Cir. 2018). In the present case, the result would\\nbe the same under either the deferential or traditional standard.\\n\\n -20-\\n\\fGarcía, 978 F.2d at 748 (internal quotation marks omitted).\\n\\n Appellants aver that the district court abused its\\n\\ndiscretion by not considering their arguments challenging Rosa's\\n\\ntestimony that he saw Blomquist dancing and then falling while\\n\\nattempting to slip and slide on the dancefloor. They stress two\\n\\npoints: first, that Rosa testified that Blomquist was wearing a\\n\\nblack bathing suit when she fell, while stipulated photo evidence\\n\\nreflects that she was actually wearing a black dress over a pink\\n\\nbathing suit; and, second, that the testimony was directly\\n\\ncontradicted by Blomquist's testimony that she did not slip and\\n\\nslide on the dancefloor, and was unaware it was slippery.\\n\\n The nature of this challenge sets it up to fail. We\\n\\nhave held that \\\"conflicting testimony or a question as to the\\n\\ncredibility of a witness are [generally] not sufficient grounds\\n\\nfor granting a new trial.\\\" García, 978 F.2d at 748 (citation\\n\\nomitted). This is precisely the type of challenge Appellants\\n\\nraise. They argue that we should strip Rosa's testimony of\\n\\ncredibility, accept Blomquist's version of the events, and\\n\\nconclude that the district court abused its discretion in\\n\\nconcluding that the jury's verdict was not \\\"against the weight of\\n\\nthe evidence.\\\" Jennings II, 587 F.3d at 436. We are not persuaded.\\n\\n The jury was presented with Blomquist's testimony,\\n\\nclaiming that her fall was accidental, and Rosa's testimony, which\\n\\n\\n -21-\\n\\fstrongly suggested that Blomquist's fall was the result of an\\n\\nunsuccessful attempt to slip and slide on the dancefloor. No other\\n\\nwitnesses testified about the specific circumstances of\\n\\nBlomquist's fall. Thus, the jury had to decide whether to accept\\n\\nBlomquist's account of how she fell or Rosa's. That they chose to\\n\\naccept Rosa's, despite the inconsistencies in his testimony\\n\\nregarding Blomquist's attire, is not grounds for a new trial.\\n\\nGarcía, 978 F.2d at 748.\\n\\n We hold that the district court did not abuse its\\n\\ndiscretion in finding that the weight of the evidence supports the\\n\\njury's verdict, and therefore affirm the denial of Appellants'\\n\\nmotion for a new trial.16\\n\\n III. CONCLUSION\\n\\n Based on the foregoing, we affirm the district court's\\n\\ndenial of Appellants' motion for judgment as a matter of law and\\n\\nmotion for a new trial.\\n\\n Affirmed.\\n\\n\\n\\n\\n16Inasmuch as Appellants attempt to raise an argument based on the\\ndoctrine of comparative negligence under Puerto Rico law, they did\\nnot properly flesh it out on appeal and therefore we deem it\\nwaived. See U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n -22-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1978,"cells":{"id":{"kind":"number","value":4615355,"string":"4,615,355"},"name":{"kind":"string","value":"Asher Baruch LANDAU, Et Al., Petitioners-Appellees, v. Baruch EISENBERG, Respondent-Appellant, v. Zvi Arye Rheinold, Et Al., Respondents-Appellees, Yakov Berger, Et Al., Respondents."},"name_abbreviation":{"kind":"string","value":"Landau v. Eisenberg"},"decision_date":{"kind":"string","value":"2019-05-01"},"docket_number":{"kind":"string","value":"17-3963"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Katzmann, Droney, Sullivan\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"17-3963\\nLandau v. Rheinold\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2018\\n\\n Submitted: February 25, 2019\\n Decided: May 1, 2019\\n\\n Docket No. 17-3963\\n\\n\\n ASHER BARUCH LANDAU, et al.,1\\n\\n Petitioners-Appellees,\\n\\n v.\\n\\n BARUCH EISENBERG,\\n\\n Respondent-Appellant,\\n\\n v.\\n\\n ZVI ARYE RHEINOLD, et al.,\\n\\n Respondents-Appellees,\\n\\n YAKOV BERGER, et al.,\\n\\n Respondents.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of New York\\n No.15-cv-4811, Amon, Judge.\\n\\n1\\n For brevity’s sake, we have omitted the numerous other parties to this appeal from this caption.\\n\\n 1\\n\\fBefore: KATZMANN, Chief Judge, DRONEY and SULLIVAN, Circuit Judges.\\n\\n Respondent-Appellant Baruch Eisenberg appeals the district court’s confirmation of an\\narbitration award pursuant to 9 U.S.C. § 9 in favor of Petitioners-Appellees Asher Baruch Landau and\\nother individuals. The parties, two groups from the Bobov Hasidic Jewish community in Brooklyn,\\nNew York, agreed to arbitrate certain disputes before a rabbinical tribunal. The tribunal ruled that\\nPetitioners-Appellees owned the “Bobov” trademark, and the district court confirmed that decision.\\nWe hold that district courts should “look through” a 9 U.S.C. § 4 petition to the underlying\\ncontroversy to determine whether subject matter jurisdiction exists to confirm the arbitration award\\npursuant to 9 U.S.C. § 9. We further conclude that the district court properly exercised jurisdiction\\nand confirmed the award.\\n\\n AFFIRMED.\\n\\n ALAN VINEGRAD, David Z. Pinsky, Covington & Burling LLP,\\n New York, NY, for Petitioners-Appellees.\\n\\n BARUCH EISENBERG, pro se, Brooklyn, NY.\\n\\nPER CURIAM.\\n\\n In June 2005, two groups from the Bobov Hasidic Jewish community in Brooklyn, New York,\\n\\nagreed to arbitrate certain disputes before a rabbinical tribunal. Petitioners-appellees asserted that\\n\\n“Bobov” was “a trademark within the meaning of section 45 of the Lanham Act . . . because for\\n\\ndecades, the word ‘Bobov’ has been used in commerce to distinguish the goods and services of the\\n\\nBobov community.” Central to the dispute was whether the respondents “had the right to use the\\n\\nname and mark BOBOV for its new Hasidic community.” The arbitration agreement provided that a\\n\\npanel consisting of five rabbis would determine, among other things, who would have the right to be\\n\\nreferred to as Bobov, and to publish and distribute books and merchandise under that name. The\\n\\ntribunal issued its decision in August 2014, ruling that petitioners owned the mark, were entitled to\\n\\nregister it, and that any party could confirm the award in secular court. Petitioners sought confirmation\\n\\nof the arbitration award in district court under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 9. Of\\n\\nthe 613 respondents served, only Baruch Eisenberg filed an opposition. He raised subject matter\\n 2\\n\\fjurisdiction, venue, and merits-based arguments. The district court held that it had subject matter\\n\\njurisdiction over the petition, rejected his other arguments, and confirmed the award. Eisenberg\\n\\nappealed.2\\n\\n We hold that the district court properly “looked through” the arbitration petition to the\\n\\nunderlying controversy to determine that it had subject matter jurisdiction, and that the district court\\n\\ndid not err in confirming the arbitration award.\\n\\n I. Subject Matter Jurisdiction\\n\\n Eisenberg contests whether the district court properly exercised subject matter jurisdiction over\\n\\nthis case. “[B]efore deciding any case we are required to assure ourselves that the case is properly\\n\\nwithin our subject matter jurisdiction.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014).3 This\\n\\nCourt reviews issues of subject matter jurisdiction, which turn on questions of law, de novo. Doscher v.\\n\\nSea Port Group Secs., LLC, 832 F.3d 372, 374 (2d Cir. 2016). The party asserting subject matter\\n\\njurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction\\n\\nexists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).\\n\\n The FAA is “something of an anomaly in the realm of federal legislation: It bestows no federal\\n\\njurisdiction but rather requires for access to a federal forum an independent jurisdictional basis over\\n\\nthe parties’ dispute.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). Accordingly, although FAA § 9\\n\\nprovides, in relevant part, that parties to an arbitration agreement may apply for confirmation of an\\n\\n\\n\\n2\\n On appeal, Eisenberg reiterates, in summary fashion, his venue and merits-based arguments. He does\\nnot, however, press any substantive arguments, such as explaining why the district court’s rulings that\\nvenue was proper in district court, or that his merits-based arguments were time-barred, were incorrect.\\nAccordingly, those arguments are waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.\\n1995).\\n3\\n Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes,\\nand citations.\\n 3\\n\\farbitration award in the federal court in the district where the award was made, subject matter\\n\\njurisdiction does not exist simply because a party wishes to confirm an award.\\n\\n We have not opined on whether federal subject matter jurisdiction exists over a motion to\\n\\nconfirm an arbitration award under FAA § 9. But both the Supreme Court in Vaden and this Court in\\n\\nDoscher have provided guidance. In Vaden, the Supreme Court addressed whether federal subject matter\\n\\njurisdiction existed over petitions to compel arbitration, pursuant to 9 U.S.C. § 4. It held that “§ 4 of\\n\\nthe FAA does not enlarge federal-court jurisdiction,” Vaden, 556 U.S. at 66, and that district courts\\n\\nshould “look through” the petition to the underlying substantive controversy to determine whether the\\n\\nclaims arose under federal law, id. at 62. Specifically, a district court should “assume the absence of the\\n\\narbitration agreement and determine whether it would have jurisdiction under title 28 without it.” Id.\\n\\nat 63. Employing this approach, the Court determined that the controversy consisted of a state court\\n\\nsuit for balance due on an account, which was not amenable to federal subject matter jurisdiction. Id.\\n\\nat 66.\\n\\n Seven years later, in Doscher, we held that courts should apply Vaden’s look-through approach\\n\\nto petitions to vacate and modify arbitration awards under 9 U.S.C. § 10. See Doscher, 832 F.3d at 381–\\n\\n89. Although Doscher addressed § 10, its logic applies equally to § 9. First, we held that it was not\\n\\n“logically possible” for courts to have subject matter jurisdiction over a dispute for the purpose of § 4\\n\\npetitions but not “any of the Act’s other remedies,” given that the Supreme Court held that § 4 did not\\n\\nexpand federal jurisdiction. Id. at 384. In other words, “how can a federal court’s jurisdiction under\\n\\nthe same jurisdictional statute differ between § 4 and all other remedies under the Act?” See id. at 383.\\n\\nSecond, Doscher held that applying the look-through approach to petitions under § 10 was consistent\\n\\nwith the FAA’s pro-arbitration purpose: “[I]f a federal court would possess federal-question jurisdiction\\n\\nover the dispute when pleaded in a complaint, the federal courts are also able to enforce Congress’s\\n\\n 4\\n\\fnarrow and defined remedies in the same controversy.” Id. at 386. Third, we noted that “there is a\\n\\ncertain absurdity to an interpretation that permits parties to file motions to compel arbitration in any\\n\\ncase where the underlying dispute raises a federal question but precludes them from seeking the same\\n\\nfederal court’s aid under the Act’s other remedial provisions related to the same dispute.” Id. at 387.\\n\\n These justifications apply with equal force to § 9, which contains “substantially identical\\n\\nlanguage to § 10.” Id. at 379 n.10; see also Ortiz-Espinosa v. BBVA Secs. of Puerto Rico, Inc., 852 F.3d 36,\\n\\n45–47 (1st Cir. 2017) (relying on Doscher and holding that courts should adopt the look-through\\n\\napproach when determining subject matter jurisdiction under § 9 of the FAA). We see no reason to\\n\\nemploy a different approach for § 9 than § 10, and so hold that a district court should employ the “look\\n\\nthrough” approach described in Doscher when determining subject matter jurisdiction over petitions to\\n\\nconfirm arbitration awards under § 9.\\n\\n Applying the “look through” approach here, the district court properly determined that it had\\n\\nsubject matter jurisdiction to confirm the arbitration award. The substantive controversy underlying\\n\\nthe petition involved questions of federal trademark law, over which district courts unquestionably\\n\\npossess subject matter jurisdiction. See 28 U.S.C. § 1338. Because the district court would have had\\n\\njurisdiction over the underlying substantive controversy, it had jurisdiction to confirm the arbitration\\n\\naward pursuant to FAA § 9.\\n\\n II. Confirmation of the Award\\n\\n This Court reviews a district court’s decision to confirm an arbitration award de novo on\\n\\nquestions of law and for clear error on findings of fact. Nat’l Football League Mgmt. Council v. Nat’l\\n\\nFootball League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016). “Arbitration awards are subject to very\\n\\nlimited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes\\n\\nefficiently and avoiding long and expensive litigation.” Rich v. Spartis, 516 F.3d 75, 81 (2d Cir. 2008).\\n\\n 5\\n\\fThe FAA creates a “strong presumption in favor of enforcing arbitration awards” and courts have an\\n\\n“extremely limited” role in reviewing such awards. Wall Street Assocs., L.P. v. Becker Paribas Inc., 27 F.3d\\n\\n845, 849 (2d Cir. 1994). In other words, “an arbitration award should be enforced, despite a court’s\\n\\ndisagreement with it on the merits, if there is a barely colorable justification for the outcome reached.”\\n\\nLandy Michaels Realty Corp. v. Local 32B–32J Serv. Employees Int’l, 954 F.2d 794, 797 (2d Cir. 1992).\\n\\n Given this extremely deferential standard of review, the district court did not err in confirming\\n\\nthe arbitration award as to the 613 respondents who had been served. The rabbinical tribunal assessed\\n\\nthe parties’ evidence and arguments over a nine-year period. The district court found no indication\\n\\nthat the award was procured “through fraud or dishonesty, or that any other basis for overturning the\\n\\naward exists,” and an independent review of the record provides no basis for questioning the award.\\n\\nThe district court properly turned aside Eisenberg’s non-jurisdictional arguments, found the petition\\n\\n“effectively” unopposed and that no issue of material fact precluded confirmation, and did not err in\\n\\nconfirming the award.\\n\\n For the foregoing reasons, the judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4392608/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"DRONEY"},"judge3":{"kind":"string","value":"SULLIVAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4615355/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Asher Baruch LANDAU, Et Al., Petitioners-Appellees, v. Baruch EISENBERG, Respondent-Appellant, v. Zvi Arye Rheinold, Et Al., Respondents-Appellees, Yakov Berger, Et Al., Respondents.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3963\nLandau v. Rheinold\n\n\n In the\n United States Court of Appeals\n For the Second Circuit\n\n August Term, 2018\n\n Submitted: February 25, 2019\n Decided: May 1, 2019\n\n Docket No. 17-3963\n\n\n ASHER BARUCH LANDAU, et al.,1\n\n Petitioners-Appellees,\n\n v.\n\n BARUCH EISENBERG,\n\n Respondent-Appellant,\n\n v.\n\n ZVI ARYE RHEINOLD, et al.,\n\n Respondents-Appellees,\n\n YAKOV BERGER, et al.,\n\n Respondents.\n\n\n Appeal from the United States District Court\n for the Eastern District of New York\n No.15-cv-4811, Amon, Judge.\n\n1\n For brevity’s sake, we have omitted the numerous other parties to this appeal from this caption.\n\n 1\n\fBefore: KATZMANN, Chief Judge, DRONEY and SULLIVAN, Circuit Judges.\n\n Respondent-Appellant Baruch Eisenberg appeals the district court’s confirmation of an\narbitration award pursuant to 9 U.S.C. § 9 in favor of Petitioners-Appellees Asher Baruch Landau and\nother individuals. The parties, two groups from the Bobov Hasidic Jewish community in Brooklyn,\nNew York, agreed to arbitrate certain disputes before a rabbinical tribunal. The tribunal ruled that\nPetitioners-Appellees owned the “Bobov” trademark, and the district court confirmed that decision.\nWe hold that district courts should “look through” a 9 U.S.C. § 4 petition to the underlying\ncontroversy to determine whether subject matter jurisdiction exists to confirm the arbitration award\npursuant to 9 U.S.C. § 9. We further conclude that the district court properly exercised jurisdiction\nand confirmed the award.\n\n AFFIRMED.\n\n ALAN VINEGRAD, David Z. Pinsky, Covington & Burling LLP,\n New York, NY, for Petitioners-Appellees.\n\n BARUCH EISENBERG, pro se, Brooklyn, NY.\n\nPER CURIAM.\n\n In June 2005, two groups from the Bobov Hasidic Jewish community in Brooklyn, New York,\n\nagreed to arbitrate certain disputes before a rabbinical tribunal. Petitioners-appellees asserted that\n\n“Bobov” was “a trademark within the meaning of section 45 of the Lanham Act . . . because for\n\ndecades, the word ‘Bobov’ has been used in commerce to distinguish the goods and services of the\n\nBobov community.” Central to the dispute was whether the respondents “had the right to use the\n\nname and mark BOBOV for its new Hasidic community.” The arbitration agreement provided that a\n\npanel consisting of five rabbis would determine, among other things, who would have the right to be\n\nreferred to as Bobov, and to publish and distribute books and merchandise under that name. The\n\ntribunal issued its decision in August 2014, ruling that petitioners owned the mark, were entitled to\n\nregister it, and that any party could confirm the award in secular court. Petitioners sought confirmation\n\nof the arbitration award in district court under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 9. Of\n\nthe 613 respondents served, only Baruch Eisenberg filed an opposition. He raised subject matter\n 2\n\fjurisdiction, venue, and merits-based arguments. The district court held that it had subject matter\n\njurisdiction over the petition, rejected his other arguments, and confirmed the award. Eisenberg\n\nappealed.2\n\n We hold that the district court properly “looked through” the arbitration petition to the\n\nunderlying controversy to determine that it had subject matter jurisdiction, and that the district court\n\ndid not err in confirming the arbitration award.\n\n I. Subject Matter Jurisdiction\n\n Eisenberg contests whether the district court properly exercised subject matter jurisdiction over\n\nthis case. “[B]efore deciding any case we are required to assure ourselves that the case is properly\n\nwithin our subject matter jurisdiction.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014).3 This\n\nCourt reviews issues of subject matter jurisdiction, which turn on questions of law, de novo. Doscher v.\n\nSea Port Group Secs., LLC, 832 F.3d 372, 374 (2d Cir. 2016). The party asserting subject matter\n\njurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction\n\nexists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).\n\n The FAA is “something of an anomaly in the realm of federal legislation: It bestows no federal\n\njurisdiction but rather requires for access to a federal forum an independent jurisdictional basis over\n\nthe parties’ dispute.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). Accordingly, although FAA § 9\n\nprovides, in relevant part, that parties to an arbitration agreement may apply for confirmation of an\n\n\n\n2\n On appeal, Eisenberg reiterates, in summary fashion, his venue and merits-based arguments. He does\nnot, however, press any substantive arguments, such as explaining why the district court’s rulings that\nvenue was proper in district court, or that his merits-based arguments were time-barred, were incorrect.\nAccordingly, those arguments are waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.\n1995).\n3\n Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes,\nand citations.\n 3\n\farbitration award in the federal court in the district where the award was made, subject matter\n\njurisdiction does not exist simply because a party wishes to confirm an award.\n\n We have not opined on whether federal subject matter jurisdiction exists over a motion to\n\nconfirm an arbitration award under FAA § 9. But both the Supreme Court in Vaden and this Court in\n\nDoscher have provided guidance. In Vaden, the Supreme Court addressed whether federal subject matter\n\njurisdiction existed over petitions to compel arbitration, pursuant to 9 U.S.C. § 4. It held that “§ 4 of\n\nthe FAA does not enlarge federal-court jurisdiction,” Vaden, 556 U.S. at 66, and that district courts\n\nshould “look through” the petition to the underlying substantive controversy to determine whether the\n\nclaims arose under federal law, id. at 62. Specifically, a district court should “assume the absence of the\n\narbitration agreement and determine whether it would have jurisdiction under title 28 without it.” Id.\n\nat 63. Employing this approach, the Court determined that the controversy consisted of a state court\n\nsuit for balance due on an account, which was not amenable to federal subject matter jurisdiction. Id.\n\nat 66.\n\n Seven years later, in Doscher, we held that courts should apply Vaden’s look-through approach\n\nto petitions to vacate and modify arbitration awards under 9 U.S.C. § 10. See Doscher, 832 F.3d at 381–\n\n89. Although Doscher addressed § 10, its logic applies equally to § 9. First, we held that it was not\n\n“logically possible” for courts to have subject matter jurisdiction over a dispute for the purpose of § 4\n\npetitions but not “any of the Act’s other remedies,” given that the Supreme Court held that § 4 did not\n\nexpand federal jurisdiction. Id. at 384. In other words, “how can a federal court’s jurisdiction under\n\nthe same jurisdictional statute differ between § 4 and all other remedies under the Act?” See id. at 383.\n\nSecond, Doscher held that applying the look-through approach to petitions under § 10 was consistent\n\nwith the FAA’s pro-arbitration purpose: “[I]f a federal court would possess federal-question jurisdiction\n\nover the dispute when pleaded in a complaint, the federal courts are also able to enforce Congress’s\n\n 4\n\fnarrow and defined remedies in the same controversy.” Id. at 386. Third, we noted that “there is a\n\ncertain absurdity to an interpretation that permits parties to file motions to compel arbitration in any\n\ncase where the underlying dispute raises a federal question but precludes them from seeking the same\n\nfederal court’s aid under the Act’s other remedial provisions related to the same dispute.” Id. at 387.\n\n These justifications apply with equal force to § 9, which contains “substantially identical\n\nlanguage to § 10.” Id. at 379 n.10; see also Ortiz-Espinosa v. BBVA Secs. of Puerto Rico, Inc., 852 F.3d 36,\n\n45–47 (1st Cir. 2017) (relying on Doscher and holding that courts should adopt the look-through\n\napproach when determining subject matter jurisdiction under § 9 of the FAA). We see no reason to\n\nemploy a different approach for § 9 than § 10, and so hold that a district court should employ the “look\n\nthrough” approach described in Doscher when determining subject matter jurisdiction over petitions to\n\nconfirm arbitration awards under § 9.\n\n Applying the “look through” approach here, the district court properly determined that it had\n\nsubject matter jurisdiction to confirm the arbitration award. The substantive controversy underlying\n\nthe petition involved questions of federal trademark law, over which district courts unquestionably\n\npossess subject matter jurisdiction. See 28 U.S.C. § 1338. Because the district court would have had\n\njurisdiction over the underlying substantive controversy, it had jurisdiction to confirm the arbitration\n\naward pursuant to FAA § 9.\n\n II. Confirmation of the Award\n\n This Court reviews a district court’s decision to confirm an arbitration award de novo on\n\nquestions of law and for clear error on findings of fact. Nat’l Football League Mgmt. Council v. Nat’l\n\nFootball League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016). “Arbitration awards are subject to very\n\nlimited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes\n\nefficiently and avoiding long and expensive litigation.” Rich v. Spartis, 516 F.3d 75, 81 (2d Cir. 2008).\n\n 5\n\fThe FAA creates a “strong presumption in favor of enforcing arbitration awards” and courts have an\n\n“extremely limited” role in reviewing such awards. Wall Street Assocs., L.P. v. Becker Paribas Inc., 27 F.3d\n\n845, 849 (2d Cir. 1994). In other words, “an arbitration award should be enforced, despite a court’s\n\ndisagreement with it on the merits, if there is a barely colorable justification for the outcome reached.”\n\nLandy Michaels Realty Corp. v. Local 32B–32J Serv. Employees Int’l, 954 F.2d 794, 797 (2d Cir. 1992).\n\n Given this extremely deferential standard of review, the district court did not err in confirming\n\nthe arbitration award as to the 613 respondents who had been served. The rabbinical tribunal assessed\n\nthe parties’ evidence and arguments over a nine-year period. The district court found no indication\n\nthat the award was procured “through fraud or dishonesty, or that any other basis for overturning the\n\naward exists,” and an independent review of the record provides no basis for questioning the award.\n\nThe district court properly turned aside Eisenberg’s non-jurisdictional arguments, found the petition\n\n“effectively” unopposed and that no issue of material fact precluded confirmation, and did not err in\n\nconfirming the award.\n\n For the foregoing reasons, the judgment of the district court is AFFIRMED.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Asher Baruch LANDAU, Et Al., Petitioners-Appellees, v. Baruch EISENBERG, Respondent-Appellant, v. Zvi Arye Rheinold, Et Al., Respondents-Appellees, Yakov Berger, Et Al., Respondents.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-3963\\nLandau v. Rheinold\\n\\n\\n In the\\n United States Court of Appeals\\n For the Second Circuit\\n\\n August Term, 2018\\n\\n Submitted: February 25, 2019\\n Decided: May 1, 2019\\n\\n Docket No. 17-3963\\n\\n\\n ASHER BARUCH LANDAU, et al.,1\\n\\n Petitioners-Appellees,\\n\\n v.\\n\\n BARUCH EISENBERG,\\n\\n Respondent-Appellant,\\n\\n v.\\n\\n ZVI ARYE RHEINOLD, et al.,\\n\\n Respondents-Appellees,\\n\\n YAKOV BERGER, et al.,\\n\\n Respondents.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of New York\\n No.15-cv-4811, Amon, Judge.\\n\\n1\\n For brevity’s sake, we have omitted the numerous other parties to this appeal from this caption.\\n\\n 1\\n\\fBefore: KATZMANN, Chief Judge, DRONEY and SULLIVAN, Circuit Judges.\\n\\n Respondent-Appellant Baruch Eisenberg appeals the district court’s confirmation of an\\narbitration award pursuant to 9 U.S.C. § 9 in favor of Petitioners-Appellees Asher Baruch Landau and\\nother individuals. The parties, two groups from the Bobov Hasidic Jewish community in Brooklyn,\\nNew York, agreed to arbitrate certain disputes before a rabbinical tribunal. The tribunal ruled that\\nPetitioners-Appellees owned the “Bobov” trademark, and the district court confirmed that decision.\\nWe hold that district courts should “look through” a 9 U.S.C. § 4 petition to the underlying\\ncontroversy to determine whether subject matter jurisdiction exists to confirm the arbitration award\\npursuant to 9 U.S.C. § 9. We further conclude that the district court properly exercised jurisdiction\\nand confirmed the award.\\n\\n AFFIRMED.\\n\\n ALAN VINEGRAD, David Z. Pinsky, Covington & Burling LLP,\\n New York, NY, for Petitioners-Appellees.\\n\\n BARUCH EISENBERG, pro se, Brooklyn, NY.\\n\\nPER CURIAM.\\n\\n In June 2005, two groups from the Bobov Hasidic Jewish community in Brooklyn, New York,\\n\\nagreed to arbitrate certain disputes before a rabbinical tribunal. Petitioners-appellees asserted that\\n\\n“Bobov” was “a trademark within the meaning of section 45 of the Lanham Act . . . because for\\n\\ndecades, the word ‘Bobov’ has been used in commerce to distinguish the goods and services of the\\n\\nBobov community.” Central to the dispute was whether the respondents “had the right to use the\\n\\nname and mark BOBOV for its new Hasidic community.” The arbitration agreement provided that a\\n\\npanel consisting of five rabbis would determine, among other things, who would have the right to be\\n\\nreferred to as Bobov, and to publish and distribute books and merchandise under that name. The\\n\\ntribunal issued its decision in August 2014, ruling that petitioners owned the mark, were entitled to\\n\\nregister it, and that any party could confirm the award in secular court. Petitioners sought confirmation\\n\\nof the arbitration award in district court under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 9. Of\\n\\nthe 613 respondents served, only Baruch Eisenberg filed an opposition. He raised subject matter\\n 2\\n\\fjurisdiction, venue, and merits-based arguments. The district court held that it had subject matter\\n\\njurisdiction over the petition, rejected his other arguments, and confirmed the award. Eisenberg\\n\\nappealed.2\\n\\n We hold that the district court properly “looked through” the arbitration petition to the\\n\\nunderlying controversy to determine that it had subject matter jurisdiction, and that the district court\\n\\ndid not err in confirming the arbitration award.\\n\\n I. Subject Matter Jurisdiction\\n\\n Eisenberg contests whether the district court properly exercised subject matter jurisdiction over\\n\\nthis case. “[B]efore deciding any case we are required to assure ourselves that the case is properly\\n\\nwithin our subject matter jurisdiction.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014).3 This\\n\\nCourt reviews issues of subject matter jurisdiction, which turn on questions of law, de novo. Doscher v.\\n\\nSea Port Group Secs., LLC, 832 F.3d 372, 374 (2d Cir. 2016). The party asserting subject matter\\n\\njurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction\\n\\nexists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).\\n\\n The FAA is “something of an anomaly in the realm of federal legislation: It bestows no federal\\n\\njurisdiction but rather requires for access to a federal forum an independent jurisdictional basis over\\n\\nthe parties’ dispute.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). Accordingly, although FAA § 9\\n\\nprovides, in relevant part, that parties to an arbitration agreement may apply for confirmation of an\\n\\n\\n\\n2\\n On appeal, Eisenberg reiterates, in summary fashion, his venue and merits-based arguments. He does\\nnot, however, press any substantive arguments, such as explaining why the district court’s rulings that\\nvenue was proper in district court, or that his merits-based arguments were time-barred, were incorrect.\\nAccordingly, those arguments are waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.\\n1995).\\n3\\n Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes,\\nand citations.\\n 3\\n\\farbitration award in the federal court in the district where the award was made, subject matter\\n\\njurisdiction does not exist simply because a party wishes to confirm an award.\\n\\n We have not opined on whether federal subject matter jurisdiction exists over a motion to\\n\\nconfirm an arbitration award under FAA § 9. But both the Supreme Court in Vaden and this Court in\\n\\nDoscher have provided guidance. In Vaden, the Supreme Court addressed whether federal subject matter\\n\\njurisdiction existed over petitions to compel arbitration, pursuant to 9 U.S.C. § 4. It held that “§ 4 of\\n\\nthe FAA does not enlarge federal-court jurisdiction,” Vaden, 556 U.S. at 66, and that district courts\\n\\nshould “look through” the petition to the underlying substantive controversy to determine whether the\\n\\nclaims arose under federal law, id. at 62. Specifically, a district court should “assume the absence of the\\n\\narbitration agreement and determine whether it would have jurisdiction under title 28 without it.” Id.\\n\\nat 63. Employing this approach, the Court determined that the controversy consisted of a state court\\n\\nsuit for balance due on an account, which was not amenable to federal subject matter jurisdiction. Id.\\n\\nat 66.\\n\\n Seven years later, in Doscher, we held that courts should apply Vaden’s look-through approach\\n\\nto petitions to vacate and modify arbitration awards under 9 U.S.C. § 10. See Doscher, 832 F.3d at 381–\\n\\n89. Although Doscher addressed § 10, its logic applies equally to § 9. First, we held that it was not\\n\\n“logically possible” for courts to have subject matter jurisdiction over a dispute for the purpose of § 4\\n\\npetitions but not “any of the Act’s other remedies,” given that the Supreme Court held that § 4 did not\\n\\nexpand federal jurisdiction. Id. at 384. In other words, “how can a federal court’s jurisdiction under\\n\\nthe same jurisdictional statute differ between § 4 and all other remedies under the Act?” See id. at 383.\\n\\nSecond, Doscher held that applying the look-through approach to petitions under § 10 was consistent\\n\\nwith the FAA’s pro-arbitration purpose: “[I]f a federal court would possess federal-question jurisdiction\\n\\nover the dispute when pleaded in a complaint, the federal courts are also able to enforce Congress’s\\n\\n 4\\n\\fnarrow and defined remedies in the same controversy.” Id. at 386. Third, we noted that “there is a\\n\\ncertain absurdity to an interpretation that permits parties to file motions to compel arbitration in any\\n\\ncase where the underlying dispute raises a federal question but precludes them from seeking the same\\n\\nfederal court’s aid under the Act’s other remedial provisions related to the same dispute.” Id. at 387.\\n\\n These justifications apply with equal force to § 9, which contains “substantially identical\\n\\nlanguage to § 10.” Id. at 379 n.10; see also Ortiz-Espinosa v. BBVA Secs. of Puerto Rico, Inc., 852 F.3d 36,\\n\\n45–47 (1st Cir. 2017) (relying on Doscher and holding that courts should adopt the look-through\\n\\napproach when determining subject matter jurisdiction under § 9 of the FAA). We see no reason to\\n\\nemploy a different approach for § 9 than § 10, and so hold that a district court should employ the “look\\n\\nthrough” approach described in Doscher when determining subject matter jurisdiction over petitions to\\n\\nconfirm arbitration awards under § 9.\\n\\n Applying the “look through” approach here, the district court properly determined that it had\\n\\nsubject matter jurisdiction to confirm the arbitration award. The substantive controversy underlying\\n\\nthe petition involved questions of federal trademark law, over which district courts unquestionably\\n\\npossess subject matter jurisdiction. See 28 U.S.C. § 1338. Because the district court would have had\\n\\njurisdiction over the underlying substantive controversy, it had jurisdiction to confirm the arbitration\\n\\naward pursuant to FAA § 9.\\n\\n II. Confirmation of the Award\\n\\n This Court reviews a district court’s decision to confirm an arbitration award de novo on\\n\\nquestions of law and for clear error on findings of fact. Nat’l Football League Mgmt. Council v. Nat’l\\n\\nFootball League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016). “Arbitration awards are subject to very\\n\\nlimited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes\\n\\nefficiently and avoiding long and expensive litigation.” Rich v. Spartis, 516 F.3d 75, 81 (2d Cir. 2008).\\n\\n 5\\n\\fThe FAA creates a “strong presumption in favor of enforcing arbitration awards” and courts have an\\n\\n“extremely limited” role in reviewing such awards. Wall Street Assocs., L.P. v. Becker Paribas Inc., 27 F.3d\\n\\n845, 849 (2d Cir. 1994). In other words, “an arbitration award should be enforced, despite a court’s\\n\\ndisagreement with it on the merits, if there is a barely colorable justification for the outcome reached.”\\n\\nLandy Michaels Realty Corp. v. Local 32B–32J Serv. Employees Int’l, 954 F.2d 794, 797 (2d Cir. 1992).\\n\\n Given this extremely deferential standard of review, the district court did not err in confirming\\n\\nthe arbitration award as to the 613 respondents who had been served. The rabbinical tribunal assessed\\n\\nthe parties’ evidence and arguments over a nine-year period. The district court found no indication\\n\\nthat the award was procured “through fraud or dishonesty, or that any other basis for overturning the\\n\\naward exists,” and an independent review of the record provides no basis for questioning the award.\\n\\nThe district court properly turned aside Eisenberg’s non-jurisdictional arguments, found the petition\\n\\n“effectively” unopposed and that no issue of material fact precluded confirmation, and did not err in\\n\\nconfirming the award.\\n\\n For the foregoing reasons, the judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1979,"cells":{"id":{"kind":"number","value":4615953,"string":"4,615,953"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Genego v. Barr"},"decision_date":{"kind":"string","value":"2019-05-02"},"docket_number":{"kind":"string","value":"16-867"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: CALABRESI and POOLER, Circuit Judges, and RAMOS, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"POOLER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"16‐867 \\n Genego v. Barr \\n \\n 1 UNITED STATES COURT OF APPEALS \\n 2 FOR THE SECOND CIRCUIT \\n 3 ____________________ \\n 4 \\n 5 August Term, 2018 \\n 6 \\n 7 (Argued: January 9, 2019 Decided: May 2, 2019) \\n 8 \\n 9 Docket No. 16‐867 \\n10 \\n11 ____________________ \\n12 \\n13 KWEI GENEGO, aka CYRIL GENEGO, \\n14 \\n15 Petitioner, \\n16 \\n17 v. \\n18 \\n19 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, \\n20 \\n21 Respondent. \\n22 \\n23 ____________________ \\n24 \\n25 Before: CALABRESI and POOLER, Circuit Judges, and RAMOS, District Judge.1 \\n \\n\\n\\n\\n\\n 1\\n Judge Edgardo Ramos, United States District Court for the Southern\\n District of New York, sitting by designation.\\n\\f 1 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \\n\\n 2 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \\n\\n 3 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \\n\\n 4 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \\n\\n 5 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \\n\\n 6 Connecticut conviction for third‐degree burglary, which the BIA determined was \\n\\n 7 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \\n\\n 8 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \\n\\n 9 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \\n\\n10 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \\n\\n11 order granting Genego’s petition for review, terminating all removal \\n\\n12 proceedings, and indicating an opinion would follow. \\n\\n13 Petition granted. \\n\\n14 ____________________ \\n\\n15 NANCY E. MARTIN, Collins & Martin, P.C. (Anthony \\n16 D. Collins, on the brief), Wethersfield, CT, for Petitioner \\n17 Kwei Genego. \\n18 \\n19 SONG E. PARK, Senior Litigation Counsel, Office of \\n20 Immigration Litigation, United States Department of \\n\\n 2\\n\\f 1 Justice, Civil Division (Joseph H. Hunt, Assistant \\n 2 Attorney General; Cindy Ferrier, Assistant Director, on \\n 3 the brief), Washington, DC, for Respondent William P. \\n 4 Barr. \\n 5 \\n 6 VALERIE CAHAN, Hughes Hubbard & Reed LLP \\n 7 (Vilia B. Hayes, Sarah L. Cave, Karen M. Chau, on the \\n 8 brief), New York, NY, amicus curiae in support of \\n 9 Petitioner. \\n10 \\n11 POOLER, Circuit Judge: \\n\\n12 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \\n\\n13 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \\n\\n14 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \\n\\n15 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \\n\\n16 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \\n\\n17 Connecticut conviction for third‐degree burglary, which the BIA determined was \\n\\n18 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \\n\\n19 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \\n\\n20 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \\n\\n21 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \\n\\n\\n\\n\\n 3\\n\\f 1 order granting Genego’s petition for review, terminating all removal \\n\\n 2 proceedings, and indicating an opinion would follow. \\n\\n 3 BACKGROUND \\n\\n 4 Genego, a native and citizen of Ghana, is a lawful permanent resident of \\n\\n 5 the United States. He immigrated to the United States in 2001, when he was 11 \\n\\n 6 years old, and lives with his parents in Connecticut. Genego’s mother is a \\n\\n 7 naturalized citizen, and his father is a lawful permanent resident. In October \\n\\n 8 2011, Genego pled guilty to burglary in the third degree in violation of Section \\n\\n 9 53(a)‐103 of the Connecticut General Statutes, which provides that “[a] person is \\n\\n10 guilty of burglary in the third degree when he enters or remains unlawfully in a \\n\\n11 building with intent to commit a crime therein.” Conn. Gen. Stat. § 53(a)‐103. \\n\\n12 Genego was placed in removal proceedings, charged with being \\n\\n13 deportable as an “alien . . . convicted of an aggravated felony . . . after \\n\\n14 admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Notice to Appear alleged that \\n\\n15 Genego’s conviction was an aggravated felony because it fell into the categories \\n\\n16 of either (1) “a theft offense . . . or burglary offense for which the term of \\n\\n\\n\\n\\n 4\\n\\f 1 imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(G); or (2) a “crime of \\n\\n 2 violence” within the meaning of 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F). \\n\\n 3 Genego denied removability and moved to terminate the removal \\n\\n 4 proceedings, challenging both grounds for deportation. On March 10, 2014, an \\n\\n 5 immigration judge ordered Genego removed to Ghana, finding his conviction \\n\\n 6 constituted both an aggravated burglary offense and a crime of violence as set \\n\\n 7 forth in the Notice to Appear. Genego filed a timely appeal to the BIA. On \\n\\n 8 October 2, 2014, the BIA reversed the immigration judge’s order. The BIA found \\n\\n 9 that the government failed to meet “its burden of demonstrating by clear and \\n\\n10 convincing evidence that [Genego] is removable for having been convicted of an \\n\\n11 aggravated felony burglary offense, as defined in section 101(a)(43)(G) of the \\n\\n12 Act.” Administrative Record at 142. The BIA also found that the immigration \\n\\n13 judge erred in analyzing Genego’s removability under Section 16(b). It remanded \\n\\n14 the matter so that the immigration judge could determine, in the first instance, \\n\\n15 whether the government demonstrated “that ‘in the ordinary case,’ a violation of \\n\\n16 CGSA § 53a‐103 presents a substantial risk of the use of physical force against the \\n\\n\\n\\n\\n 5\\n\\f 1 person or property of another, as necessary to find that [Genego] was convicted \\n\\n 2 of a crime of violence aggravated felony.” Administration Record at 144. \\n\\n 3 On March 9, 2015, the immigration judge again ordered Genego removed. \\n\\n 4 The immigration judge determined that Genego’s conviction constituted a crime \\n\\n 5 of violence under the residual clause of Section 16(b) because “in the ordinary \\n\\n 6 case, violation of the statute arises from the destructive application of force to the \\n\\n 7 person or property of another.” Administrative Record at 94. Genego again \\n\\n 8 appealed to the BIA. On February 24, 2016, the BIA affirmed the immigration \\n\\n 9 judge’s decision and dismissed the appeal, agreeing that Connecticut General \\n\\n10 Statue § 53a‐103 is a crime of violence as defined in Section 16(b). \\n\\n11 Genego timely petitioned this Court for review. We stayed the appeal \\n\\n12 pending the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 \\n\\n13 (2018). On April 17, 2018, the Supreme Court decided Dimaya and struck Section \\n\\n14 16(b) as unconstitutionally vague. Id. at 1210. The parties in this matter then filed \\n\\n15 letter briefs, and oral argument was held on January 9, 2019. We issued an order \\n\\n16 on January 10, 2019, granting the petition and vacating the order of removal, \\n\\n17 with this opinion to follow. \\n\\n\\n 6\\n\\f 1 DISCUSSION \\n\\n 2 Whether Genego’s third‐degree burglary conviction (Connecticut General \\n\\n 3 Statute § 53a‐103) is a crime of violence aggravated felony is a question of law \\n\\n 4 over which we have jurisdiction. Vargas‐Sarmiento v. U.S. Dep’t of Justice, 448 F.3d \\n\\n 5 159, 164 (2d Cir. 2006). Our review is de novo. Id. at 165. \\n\\n 6 The October 2, 2014 decision of the BIA left only one ground for Genego’s \\n\\n 7 removal: the finding that he committed a “crime of violence” within the meaning \\n\\n 8 of Section 16(b). A “crime of violence” is defined in Section 16(b) “any other \\n\\n 9 offense that is a felony and that, by its nature, involves a substantial risk that \\n\\n10 physical force against the person or property of another may be used in the \\n\\n11 course of committing the offense.” 18 U.S.C. § 16(b). The Supreme Court found \\n\\n12 that Section 16(b) contained both “an ordinary‐case requirement and an ill‐\\n\\n13 defined risk threshold,” which “invited arbitrary enforcement[] and failed to \\n\\n14 provide fair notice.” Dimaya, 138 S. Ct. at 1223 (internal quotation marks \\n\\n15 omitted). It thus “produces more unpredictability and arbitrariness than the Due \\n\\n16 Process Clause tolerates,“ rendering it unconstitutionally vague and thus void. \\n\\n17 Id. (internal quotation marks omitted). \\n\\n\\n 7\\n\\f 1 As the government concedes, the only basis for Genego’s removal is the \\n\\n 2 finding that his conviction was a crime of violence within the meaning of Section \\n\\n 3 16(b). Nevertheless, the government urges remand to the BIA so that the BIA \\n\\n 4 could determine the impact of Dimaya on Genego’s case in the first instance. We \\n\\n 5 decline that invitation: the question is one of law, well within this Court’s \\n\\n 6 purview. \\n\\n 7 The government is correct that in most circumstances, granting the petition \\n\\n 8 would result in remand with instructions to the BIA to terminate Genego’s \\n\\n 9 removal proceedings. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) \\n\\n10 (“Generally speaking, a court of appeals should remand a case to an agency for \\n\\n11 decision of a matter that statutes place primarily in agency hands.”). But \\n\\n12 “[r]emand is unnecessary if it would be pointless or futile, such as where there is \\n\\n13 an alternative and sufficient basis for the result, the error is tangential to non‐\\n\\n14 erroneous reasoning, or the overwhelming evidence makes the same decision \\n\\n15 inevitable.” See De La Rosa v. Holder, 598 F.3d 103, 108 (2d Cir. 2010); see also \\n\\n16 NLRB v. Wyman‐Gordon Co., 394 U.S. 759, 766 n.6 (1969) (noting that when “there \\n\\n17 is not the slightest uncertainty as to the outcome of a proceeding[,] . . . it would \\n\\n\\n 8\\n\\f 1 be meaningless to remand.”). Here, the BIA already concluded Genego was not \\n\\n 2 removable based on 8 U.S.C. § 1101(a)(43)(F). The government identifies no other \\n\\n 3 basis for removability. And this case was argued during the recent government \\n\\n 4 shutdown, which exacerbated the backlog of immigration cases. 2 We thus chose \\n\\n 5 to simply order the removal proceedings terminated. \\n\\n 6 CONCLUSION \\n\\n 7 As the Supreme Court’s holding in Dimaya makes pellucidly clear that \\n\\n 8 Genego is no longer subject to removal proceedings, we (1) grant the petition for \\n\\n 9 review, (2) vacate the order of removal, and (3) terminate the removal \\n\\n10 proceedings. The Government’s motion to file a late brief is hereby GRANTED \\n\\n11 nunc pro tunc. \\n\\n\\n\\n\\n 2\\n See, e.g., Transactional Records Access Clearinghouse, Syracuse Univ., Cancelled \\n Immigration Court Hearings Grows as Shutdown Continues (Jan. 14, 2019), \\n trac.syr.edu/immigration/reports/543/ (documenting backlog in immigration courts, \\n both before and during the shutdown).\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4393206/\", \"author_raw\": \"POOLER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CALABRESI"},"judge2":{"kind":"string","value":"POOLER"},"judge3":{"kind":"string","value":"RAMOS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CALABRESI\": \", Circuit\", \"POOLER\": \", Circuit\", \"RAMOS\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4615953/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Genego v. Barr\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n16‐867 \n Genego v. Barr \n \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SECOND CIRCUIT \n 3 ____________________ \n 4 \n 5 August Term, 2018 \n 6 \n 7 (Argued: January 9, 2019 Decided: May 2, 2019) \n 8 \n 9 Docket No. 16‐867 \n10 \n11 ____________________ \n12 \n13 KWEI GENEGO, aka CYRIL GENEGO, \n14 \n15 Petitioner, \n16 \n17 v. \n18 \n19 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, \n20 \n21 Respondent. \n22 \n23 ____________________ \n24 \n25 Before: CALABRESI and POOLER, Circuit Judges, and RAMOS, District Judge.1 \n \n\n\n\n\n 1\n Judge Edgardo Ramos, United States District Court for the Southern\n District of New York, sitting by designation.\n\f 1 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \n\n 2 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \n\n 3 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \n\n 4 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \n\n 5 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \n\n 6 Connecticut conviction for third‐degree burglary, which the BIA determined was \n\n 7 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \n\n 8 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \n\n 9 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \n\n10 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \n\n11 order granting Genego’s petition for review, terminating all removal \n\n12 proceedings, and indicating an opinion would follow. \n\n13 Petition granted. \n\n14 ____________________ \n\n15 NANCY E. MARTIN, Collins & Martin, P.C. (Anthony \n16 D. Collins, on the brief), Wethersfield, CT, for Petitioner \n17 Kwei Genego. \n18 \n19 SONG E. PARK, Senior Litigation Counsel, Office of \n20 Immigration Litigation, United States Department of \n\n 2\n\f 1 Justice, Civil Division (Joseph H. Hunt, Assistant \n 2 Attorney General; Cindy Ferrier, Assistant Director, on \n 3 the brief), Washington, DC, for Respondent William P. \n 4 Barr. \n 5 \n 6 VALERIE CAHAN, Hughes Hubbard & Reed LLP \n 7 (Vilia B. Hayes, Sarah L. Cave, Karen M. Chau, on the \n 8 brief), New York, NY, amicus curiae in support of \n 9 Petitioner. \n10 \n11 POOLER, Circuit Judge: \n\n12 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \n\n13 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \n\n14 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \n\n15 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \n\n16 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \n\n17 Connecticut conviction for third‐degree burglary, which the BIA determined was \n\n18 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \n\n19 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \n\n20 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \n\n21 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \n\n\n\n\n 3\n\f 1 order granting Genego’s petition for review, terminating all removal \n\n 2 proceedings, and indicating an opinion would follow. \n\n 3 BACKGROUND \n\n 4 Genego, a native and citizen of Ghana, is a lawful permanent resident of \n\n 5 the United States. He immigrated to the United States in 2001, when he was 11 \n\n 6 years old, and lives with his parents in Connecticut. Genego’s mother is a \n\n 7 naturalized citizen, and his father is a lawful permanent resident. In October \n\n 8 2011, Genego pled guilty to burglary in the third degree in violation of Section \n\n 9 53(a)‐103 of the Connecticut General Statutes, which provides that “[a] person is \n\n10 guilty of burglary in the third degree when he enters or remains unlawfully in a \n\n11 building with intent to commit a crime therein.” Conn. Gen. Stat. § 53(a)‐103. \n\n12 Genego was placed in removal proceedings, charged with being \n\n13 deportable as an “alien . . . convicted of an aggravated felony . . . after \n\n14 admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Notice to Appear alleged that \n\n15 Genego’s conviction was an aggravated felony because it fell into the categories \n\n16 of either (1) “a theft offense . . . or burglary offense for which the term of \n\n\n\n\n 4\n\f 1 imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(G); or (2) a “crime of \n\n 2 violence” within the meaning of 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F). \n\n 3 Genego denied removability and moved to terminate the removal \n\n 4 proceedings, challenging both grounds for deportation. On March 10, 2014, an \n\n 5 immigration judge ordered Genego removed to Ghana, finding his conviction \n\n 6 constituted both an aggravated burglary offense and a crime of violence as set \n\n 7 forth in the Notice to Appear. Genego filed a timely appeal to the BIA. On \n\n 8 October 2, 2014, the BIA reversed the immigration judge’s order. The BIA found \n\n 9 that the government failed to meet “its burden of demonstrating by clear and \n\n10 convincing evidence that [Genego] is removable for having been convicted of an \n\n11 aggravated felony burglary offense, as defined in section 101(a)(43)(G) of the \n\n12 Act.” Administrative Record at 142. The BIA also found that the immigration \n\n13 judge erred in analyzing Genego’s removability under Section 16(b). It remanded \n\n14 the matter so that the immigration judge could determine, in the first instance, \n\n15 whether the government demonstrated “that ‘in the ordinary case,’ a violation of \n\n16 CGSA § 53a‐103 presents a substantial risk of the use of physical force against the \n\n\n\n\n 5\n\f 1 person or property of another, as necessary to find that [Genego] was convicted \n\n 2 of a crime of violence aggravated felony.” Administration Record at 144. \n\n 3 On March 9, 2015, the immigration judge again ordered Genego removed. \n\n 4 The immigration judge determined that Genego’s conviction constituted a crime \n\n 5 of violence under the residual clause of Section 16(b) because “in the ordinary \n\n 6 case, violation of the statute arises from the destructive application of force to the \n\n 7 person or property of another.” Administrative Record at 94. Genego again \n\n 8 appealed to the BIA. On February 24, 2016, the BIA affirmed the immigration \n\n 9 judge’s decision and dismissed the appeal, agreeing that Connecticut General \n\n10 Statue § 53a‐103 is a crime of violence as defined in Section 16(b). \n\n11 Genego timely petitioned this Court for review. We stayed the appeal \n\n12 pending the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 \n\n13 (2018). On April 17, 2018, the Supreme Court decided Dimaya and struck Section \n\n14 16(b) as unconstitutionally vague. Id. at 1210. The parties in this matter then filed \n\n15 letter briefs, and oral argument was held on January 9, 2019. We issued an order \n\n16 on January 10, 2019, granting the petition and vacating the order of removal, \n\n17 with this opinion to follow. \n\n\n 6\n\f 1 DISCUSSION \n\n 2 Whether Genego’s third‐degree burglary conviction (Connecticut General \n\n 3 Statute § 53a‐103) is a crime of violence aggravated felony is a question of law \n\n 4 over which we have jurisdiction. Vargas‐Sarmiento v. U.S. Dep’t of Justice, 448 F.3d \n\n 5 159, 164 (2d Cir. 2006). Our review is de novo. Id. at 165. \n\n 6 The October 2, 2014 decision of the BIA left only one ground for Genego’s \n\n 7 removal: the finding that he committed a “crime of violence” within the meaning \n\n 8 of Section 16(b). A “crime of violence” is defined in Section 16(b) “any other \n\n 9 offense that is a felony and that, by its nature, involves a substantial risk that \n\n10 physical force against the person or property of another may be used in the \n\n11 course of committing the offense.” 18 U.S.C. § 16(b). The Supreme Court found \n\n12 that Section 16(b) contained both “an ordinary‐case requirement and an ill‐\n\n13 defined risk threshold,” which “invited arbitrary enforcement[] and failed to \n\n14 provide fair notice.” Dimaya, 138 S. Ct. at 1223 (internal quotation marks \n\n15 omitted). It thus “produces more unpredictability and arbitrariness than the Due \n\n16 Process Clause tolerates,“ rendering it unconstitutionally vague and thus void. \n\n17 Id. (internal quotation marks omitted). \n\n\n 7\n\f 1 As the government concedes, the only basis for Genego’s removal is the \n\n 2 finding that his conviction was a crime of violence within the meaning of Section \n\n 3 16(b). Nevertheless, the government urges remand to the BIA so that the BIA \n\n 4 could determine the impact of Dimaya on Genego’s case in the first instance. We \n\n 5 decline that invitation: the question is one of law, well within this Court’s \n\n 6 purview. \n\n 7 The government is correct that in most circumstances, granting the petition \n\n 8 would result in remand with instructions to the BIA to terminate Genego’s \n\n 9 removal proceedings. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) \n\n10 (“Generally speaking, a court of appeals should remand a case to an agency for \n\n11 decision of a matter that statutes place primarily in agency hands.”). But \n\n12 “[r]emand is unnecessary if it would be pointless or futile, such as where there is \n\n13 an alternative and sufficient basis for the result, the error is tangential to non‐\n\n14 erroneous reasoning, or the overwhelming evidence makes the same decision \n\n15 inevitable.” See De La Rosa v. Holder, 598 F.3d 103, 108 (2d Cir. 2010); see also \n\n16 NLRB v. Wyman‐Gordon Co., 394 U.S. 759, 766 n.6 (1969) (noting that when “there \n\n17 is not the slightest uncertainty as to the outcome of a proceeding[,] . . . it would \n\n\n 8\n\f 1 be meaningless to remand.”). Here, the BIA already concluded Genego was not \n\n 2 removable based on 8 U.S.C. § 1101(a)(43)(F). The government identifies no other \n\n 3 basis for removability. And this case was argued during the recent government \n\n 4 shutdown, which exacerbated the backlog of immigration cases. 2 We thus chose \n\n 5 to simply order the removal proceedings terminated. \n\n 6 CONCLUSION \n\n 7 As the Supreme Court’s holding in Dimaya makes pellucidly clear that \n\n 8 Genego is no longer subject to removal proceedings, we (1) grant the petition for \n\n 9 review, (2) vacate the order of removal, and (3) terminate the removal \n\n10 proceedings. The Government’s motion to file a late brief is hereby GRANTED \n\n11 nunc pro tunc. \n\n\n\n\n 2\n See, e.g., Transactional Records Access Clearinghouse, Syracuse Univ., Cancelled \n Immigration Court Hearings Grows as Shutdown Continues (Jan. 14, 2019), \n trac.syr.edu/immigration/reports/543/ (documenting backlog in immigration courts, \n both before and during the shutdown).\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Genego v. Barr\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16‐867 \\n Genego v. Barr \\n \\n 1 UNITED STATES COURT OF APPEALS \\n 2 FOR THE SECOND CIRCUIT \\n 3 ____________________ \\n 4 \\n 5 August Term, 2018 \\n 6 \\n 7 (Argued: January 9, 2019 Decided: May 2, 2019) \\n 8 \\n 9 Docket No. 16‐867 \\n10 \\n11 ____________________ \\n12 \\n13 KWEI GENEGO, aka CYRIL GENEGO, \\n14 \\n15 Petitioner, \\n16 \\n17 v. \\n18 \\n19 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, \\n20 \\n21 Respondent. \\n22 \\n23 ____________________ \\n24 \\n25 Before: CALABRESI and POOLER, Circuit Judges, and RAMOS, District Judge.1 \\n \\n\\n\\n\\n\\n 1\\n Judge Edgardo Ramos, United States District Court for the Southern\\n District of New York, sitting by designation.\\n\\f 1 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \\n\\n 2 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \\n\\n 3 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \\n\\n 4 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \\n\\n 5 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \\n\\n 6 Connecticut conviction for third‐degree burglary, which the BIA determined was \\n\\n 7 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \\n\\n 8 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \\n\\n 9 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \\n\\n10 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \\n\\n11 order granting Genego’s petition for review, terminating all removal \\n\\n12 proceedings, and indicating an opinion would follow. \\n\\n13 Petition granted. \\n\\n14 ____________________ \\n\\n15 NANCY E. MARTIN, Collins & Martin, P.C. (Anthony \\n16 D. Collins, on the brief), Wethersfield, CT, for Petitioner \\n17 Kwei Genego. \\n18 \\n19 SONG E. PARK, Senior Litigation Counsel, Office of \\n20 Immigration Litigation, United States Department of \\n\\n 2\\n\\f 1 Justice, Civil Division (Joseph H. Hunt, Assistant \\n 2 Attorney General; Cindy Ferrier, Assistant Director, on \\n 3 the brief), Washington, DC, for Respondent William P. \\n 4 Barr. \\n 5 \\n 6 VALERIE CAHAN, Hughes Hubbard & Reed LLP \\n 7 (Vilia B. Hayes, Sarah L. Cave, Karen M. Chau, on the \\n 8 brief), New York, NY, amicus curiae in support of \\n 9 Petitioner. \\n10 \\n11 POOLER, Circuit Judge: \\n\\n12 Kwei Genego, a native and citizen of Ghana, seeks review of a February 24, \\n\\n13 2016, decision of the Bureau of Immigration Affairs (“BIA”) affirming a March 9, \\n\\n14 2015, decision of an immigration judge ordering his removal. In re Kwei Genego, \\n\\n15 No. A047 376 145 (B.I.A. Feb. 24, 2016), aff’g No. A047 376 145 (Immig. Ct. \\n\\n16 Hartford Mar. 9, 2015). The sole basis for the removal order is Genego’s \\n\\n17 Connecticut conviction for third‐degree burglary, which the BIA determined was \\n\\n18 a crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, the Supreme \\n\\n19 Court handed down its decision in Sessions v. Dimaya finding 18 U.S.C. § 16(b) \\n\\n20 unconstitutionally vague and thus void. 138 S. Ct. 1204 (2018). Section 16(b) was \\n\\n21 the only ground for Genego’s removal. On January 10, 2019, this Court filed an \\n\\n\\n\\n\\n 3\\n\\f 1 order granting Genego’s petition for review, terminating all removal \\n\\n 2 proceedings, and indicating an opinion would follow. \\n\\n 3 BACKGROUND \\n\\n 4 Genego, a native and citizen of Ghana, is a lawful permanent resident of \\n\\n 5 the United States. He immigrated to the United States in 2001, when he was 11 \\n\\n 6 years old, and lives with his parents in Connecticut. Genego’s mother is a \\n\\n 7 naturalized citizen, and his father is a lawful permanent resident. In October \\n\\n 8 2011, Genego pled guilty to burglary in the third degree in violation of Section \\n\\n 9 53(a)‐103 of the Connecticut General Statutes, which provides that “[a] person is \\n\\n10 guilty of burglary in the third degree when he enters or remains unlawfully in a \\n\\n11 building with intent to commit a crime therein.” Conn. Gen. Stat. § 53(a)‐103. \\n\\n12 Genego was placed in removal proceedings, charged with being \\n\\n13 deportable as an “alien . . . convicted of an aggravated felony . . . after \\n\\n14 admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Notice to Appear alleged that \\n\\n15 Genego’s conviction was an aggravated felony because it fell into the categories \\n\\n16 of either (1) “a theft offense . . . or burglary offense for which the term of \\n\\n\\n\\n\\n 4\\n\\f 1 imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(G); or (2) a “crime of \\n\\n 2 violence” within the meaning of 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F). \\n\\n 3 Genego denied removability and moved to terminate the removal \\n\\n 4 proceedings, challenging both grounds for deportation. On March 10, 2014, an \\n\\n 5 immigration judge ordered Genego removed to Ghana, finding his conviction \\n\\n 6 constituted both an aggravated burglary offense and a crime of violence as set \\n\\n 7 forth in the Notice to Appear. Genego filed a timely appeal to the BIA. On \\n\\n 8 October 2, 2014, the BIA reversed the immigration judge’s order. The BIA found \\n\\n 9 that the government failed to meet “its burden of demonstrating by clear and \\n\\n10 convincing evidence that [Genego] is removable for having been convicted of an \\n\\n11 aggravated felony burglary offense, as defined in section 101(a)(43)(G) of the \\n\\n12 Act.” Administrative Record at 142. The BIA also found that the immigration \\n\\n13 judge erred in analyzing Genego’s removability under Section 16(b). It remanded \\n\\n14 the matter so that the immigration judge could determine, in the first instance, \\n\\n15 whether the government demonstrated “that ‘in the ordinary case,’ a violation of \\n\\n16 CGSA § 53a‐103 presents a substantial risk of the use of physical force against the \\n\\n\\n\\n\\n 5\\n\\f 1 person or property of another, as necessary to find that [Genego] was convicted \\n\\n 2 of a crime of violence aggravated felony.” Administration Record at 144. \\n\\n 3 On March 9, 2015, the immigration judge again ordered Genego removed. \\n\\n 4 The immigration judge determined that Genego’s conviction constituted a crime \\n\\n 5 of violence under the residual clause of Section 16(b) because “in the ordinary \\n\\n 6 case, violation of the statute arises from the destructive application of force to the \\n\\n 7 person or property of another.” Administrative Record at 94. Genego again \\n\\n 8 appealed to the BIA. On February 24, 2016, the BIA affirmed the immigration \\n\\n 9 judge’s decision and dismissed the appeal, agreeing that Connecticut General \\n\\n10 Statue § 53a‐103 is a crime of violence as defined in Section 16(b). \\n\\n11 Genego timely petitioned this Court for review. We stayed the appeal \\n\\n12 pending the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 \\n\\n13 (2018). On April 17, 2018, the Supreme Court decided Dimaya and struck Section \\n\\n14 16(b) as unconstitutionally vague. Id. at 1210. The parties in this matter then filed \\n\\n15 letter briefs, and oral argument was held on January 9, 2019. We issued an order \\n\\n16 on January 10, 2019, granting the petition and vacating the order of removal, \\n\\n17 with this opinion to follow. \\n\\n\\n 6\\n\\f 1 DISCUSSION \\n\\n 2 Whether Genego’s third‐degree burglary conviction (Connecticut General \\n\\n 3 Statute § 53a‐103) is a crime of violence aggravated felony is a question of law \\n\\n 4 over which we have jurisdiction. Vargas‐Sarmiento v. U.S. Dep’t of Justice, 448 F.3d \\n\\n 5 159, 164 (2d Cir. 2006). Our review is de novo. Id. at 165. \\n\\n 6 The October 2, 2014 decision of the BIA left only one ground for Genego’s \\n\\n 7 removal: the finding that he committed a “crime of violence” within the meaning \\n\\n 8 of Section 16(b). A “crime of violence” is defined in Section 16(b) “any other \\n\\n 9 offense that is a felony and that, by its nature, involves a substantial risk that \\n\\n10 physical force against the person or property of another may be used in the \\n\\n11 course of committing the offense.” 18 U.S.C. § 16(b). The Supreme Court found \\n\\n12 that Section 16(b) contained both “an ordinary‐case requirement and an ill‐\\n\\n13 defined risk threshold,” which “invited arbitrary enforcement[] and failed to \\n\\n14 provide fair notice.” Dimaya, 138 S. Ct. at 1223 (internal quotation marks \\n\\n15 omitted). It thus “produces more unpredictability and arbitrariness than the Due \\n\\n16 Process Clause tolerates,“ rendering it unconstitutionally vague and thus void. \\n\\n17 Id. (internal quotation marks omitted). \\n\\n\\n 7\\n\\f 1 As the government concedes, the only basis for Genego’s removal is the \\n\\n 2 finding that his conviction was a crime of violence within the meaning of Section \\n\\n 3 16(b). Nevertheless, the government urges remand to the BIA so that the BIA \\n\\n 4 could determine the impact of Dimaya on Genego’s case in the first instance. We \\n\\n 5 decline that invitation: the question is one of law, well within this Court’s \\n\\n 6 purview. \\n\\n 7 The government is correct that in most circumstances, granting the petition \\n\\n 8 would result in remand with instructions to the BIA to terminate Genego’s \\n\\n 9 removal proceedings. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) \\n\\n10 (“Generally speaking, a court of appeals should remand a case to an agency for \\n\\n11 decision of a matter that statutes place primarily in agency hands.”). But \\n\\n12 “[r]emand is unnecessary if it would be pointless or futile, such as where there is \\n\\n13 an alternative and sufficient basis for the result, the error is tangential to non‐\\n\\n14 erroneous reasoning, or the overwhelming evidence makes the same decision \\n\\n15 inevitable.” See De La Rosa v. Holder, 598 F.3d 103, 108 (2d Cir. 2010); see also \\n\\n16 NLRB v. Wyman‐Gordon Co., 394 U.S. 759, 766 n.6 (1969) (noting that when “there \\n\\n17 is not the slightest uncertainty as to the outcome of a proceeding[,] . . . it would \\n\\n\\n 8\\n\\f 1 be meaningless to remand.”). Here, the BIA already concluded Genego was not \\n\\n 2 removable based on 8 U.S.C. § 1101(a)(43)(F). The government identifies no other \\n\\n 3 basis for removability. And this case was argued during the recent government \\n\\n 4 shutdown, which exacerbated the backlog of immigration cases. 2 We thus chose \\n\\n 5 to simply order the removal proceedings terminated. \\n\\n 6 CONCLUSION \\n\\n 7 As the Supreme Court’s holding in Dimaya makes pellucidly clear that \\n\\n 8 Genego is no longer subject to removal proceedings, we (1) grant the petition for \\n\\n 9 review, (2) vacate the order of removal, and (3) terminate the removal \\n\\n10 proceedings. The Government’s motion to file a late brief is hereby GRANTED \\n\\n11 nunc pro tunc. \\n\\n\\n\\n\\n 2\\n See, e.g., Transactional Records Access Clearinghouse, Syracuse Univ., Cancelled \\n Immigration Court Hearings Grows as Shutdown Continues (Jan. 14, 2019), \\n trac.syr.edu/immigration/reports/543/ (documenting backlog in immigration courts, \\n both before and during the shutdown).\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1980,"cells":{"id":{"kind":"number","value":8443979,"string":"8,443,979"},"name":{"kind":"string","value":"Kwei GENEGO, aka Cyril Genego v. William P. BARR, United States Attorney General"},"name_abbreviation":{"kind":"string","value":"Genego v. Barr"},"decision_date":{"kind":"string","value":"2019-05-02"},"docket_number":{"kind":"string","value":"Docket No. 16-867; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Calabresi, Pooler, Ramos\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415413/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"CALABRESI"},"judge2":{"kind":"string","value":"POOLER"},"judge3":{"kind":"string","value":"RAMOS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443979/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kwei GENEGO, aka Cyril Genego v. William P. BARR, United States Attorney General\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kwei GENEGO, aka Cyril Genego v. William P. BARR, United States Attorney General\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1981,"cells":{"id":{"kind":"number","value":4617529,"string":"4,617,529"},"name":{"kind":"string","value":"UNIVERSAL INSTRUMENTS CORPORATION, Plaintiff-Counter-Defendant-Appellant, v. MICRO SYSTEMS ENGINEERING, INC., Missouri Tooling & Automation, Inc., Defendants-Counter-Claimants-Appellees."},"name_abbreviation":{"kind":"string","value":"Universal Instruments Corp. v. Micro Sys. Eng'g, Inc."},"decision_date":{"kind":"string","value":"2019-05-08"},"docket_number":{"kind":"string","value":"Docket 17-2748-cv; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Walker, Chin, Keenan\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2748‐cv\\nUniversal Instruments Corp. v. Micro Sys. Engʹg, Inc.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Argued: September 21, 2018 Decided: May 8, 2019)\\n\\n Docket No. 17‐2748‐cv\\n\\n\\n UNIVERSAL INSTRUMENTS CORPORATION,\\n\\n Plaintiff‐Counter‐Defendant‐Appellant,\\n\\n v.\\n\\n MICRO SYSTEMS ENGINEERING, INC.,\\n MISSOURI TOOLING & AUTOMATION, INC.,\\n\\n Defendants‐Counter‐Claimants‐Appellees.*\\n\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE NORTHERN DISTRICT OF NEW YORK\\n\\n\\nBefore:\\n WALKER and CHIN, Circuit Judges, and KEENAN, District Judge.**\\n\\n\\n\\n*\\n The Clerk of Court is respectfully directed to amend the official caption to\\nconform to the above.\\n**\\n Judge John F. Keenan, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\f Appeal from a judgment entered in the United States District Court\\n\\nfor the Northern District of New York (Sharpe, J.), dismissing plaintiffʹs claims\\n\\nfor breach of contract, copyright infringement, misappropriation, and unfair\\n\\ncompetition arising from its sale of equipment and software for an automated\\n\\nassembly system. On appeal, plaintiff contends that the district court erred in\\n\\ngranting defendantsʹ motion for judgment as a matter of law.\\n\\n AFFIRMED.\\n\\n\\n AMY MASON SAHARIA (Kannon K. Shanmugam, Giselle\\n Barcia, Stacie M. Fahsel, on the brief), Williams &\\n Connolly LLP, Washington, D.C.; Anthony L.\\n Meola, Christopher E. Blank, Victor J.\\n Baranowski, Schmeiser, Olsen & Watts LLP,\\n Latham, New York, for Plaintiff‐Counter‐\\n Defendant‐Appellant Universal Instruments\\n Corporation.\\n\\n DAVID B. TULCHIN (Thomas C. White, Adam R. Brebner,\\n Jacob B. Lieberman, on the brief), Sullivan &\\n Cromwell LLP, New York, New York, for\\n Defendants‐Counter‐Claimants‐Appellee Micro\\n Systems Engineering, Inc.\\n\\n\\n Howard J. Kaplan (Marie E. Christiansen, on the brief),\\n Kaplan Rice LLP, New York, New York, for\\n Defendants‐Counter‐Claimants‐Appellee Missouri\\n Tooling & Automation, Inc.\\n ___________\\n\\n\\n 2\\n\\fCHIN, Circuit Judge:\\n\\n Plaintiff‐counter‐defendant‐appellant Universal Instruments\\n\\nCorporation (ʺUniversalʺ) developed and sold an automated assembly system to\\n\\ndefendant‐counter‐plaintiff‐appellee Micro Systems Engineering, Inc. (ʺMSEIʺ) in\\n\\n2007 pursuant to a purchase agreement. MSEI developed a multi‐phase plan to\\n\\nbuild a system to automate the handling of medical devices during its quality\\n\\ntesting process, and Universal won the bid to provide the equipment for the first\\n\\nphase. MSEI awarded the second and third phases of the project not to\\n\\nUniversal, but to Universalʹs competitor, defendant‐counter‐plaintiff‐appellee\\n\\nMissouri Tooling & Automation, Inc. (ʺMTAʺ). In implementing phases two and\\n\\nthree, MSEI and MTA used intellectual property, including computer source\\n\\ncode, that Universal had provided for phase one.\\n\\n Universal brought this action below alleging, inter alia, that MSEI\\n\\nand MTA had infringed Universalʹs copyright in its source code, breached the\\n\\nterms of the purchase agreement, and misappropriated Universalʹs trade secrets.\\n\\nCertain claims were dismissed on defendantsʹ motion for judgment on the\\n\\npleadings, and, after discovery, the parties proceeded to a jury trial on the\\n\\n\\n\\n\\n 3\\n\\fremaining claims. At the close of the evidence, however, the district court\\n\\ngranted defendantsʹ motion for judgment as a matter of law. Universal appeals.\\n\\n For the reasons set forth below, we affirm the judgment of the\\n\\ndistrict court.\\n\\n BACKGROUND\\n\\nA. Factual Background\\n\\n MSEI is a medical device company that designs and manufactures\\n\\nelectronics for implantable pacemakers and defibrillators. Before selling these\\n\\ncomponents, MSEI subjects them to a battery of tests to ensure they are working\\n\\nproperly. MSEI sought to automate its then manual system of moving\\n\\ncomponents from one test station to another; to that end, MSEI solicited bids for\\n\\nthe development of a Test Handling System (the ʺTHSʺ). MSEI sought to build\\n\\nthe THS in phases. The first phase would automate the handling of some\\n\\nproduct testing stations with further automation to be added in subsequent\\n\\nphases.\\n\\n Beginning in 2006, MSEI obtained bids from suppliers for phase one.\\n\\nOne of the bidders was Universal, a developer of automated assembly platforms.\\n\\nMSEI awarded phase one to Universal, and the parties memorialized their\\n\\n\\n\\n 4\\n\\fagreement in an Equipment Purchase Agreement (the ʺEPAʺ), executed in June\\n\\n2007.\\n\\n The THS ultimately developed by Universal had two software\\n\\ncomponents: the station software and the server software. The station software\\n\\nwas embedded on each individual Polaris station and ʺmanage[d] the operation\\n\\nof conveyors, elevators, stacks and robotic arms.ʺ J. Appʹx at 2606. This software\\n\\nwas stored on each stationʹs programmable logic controller and could be\\n\\ndownloaded on site by physically connecting a computer to the station and\\n\\ndownloading the source code. Id. at 1299‐1300, 1480‐81, 1532‐34. The server\\n\\nsoftware, on the other hand, was the ʺbrains of the operation,ʺ id. at 988, which\\n\\nʺsynchronize[d] the activities of the hardware and softwareʺ and was\\n\\nʺresponsible for coordinating the movement of the module trays,ʺ id. at 2606.\\n\\nThe source code for the server could not be downloaded in the same way as the\\n\\nstation software, and under the EPA, Universal was under no obligation to\\n\\nprovide the server source code to MSEI. Id. at 2344 (providing that ʺsource code\\n\\nwill not be providedʺ). The parties agreed, however, in their Final Customer\\n\\nAcceptance letter (the ʺFCAʺ) that Universal would provide MSEI with a copy of\\n\\n\\n\\n\\n 5\\n\\fthe server source code at the time of delivery. The THS was delivered in October\\n\\n2008.\\n\\n In 2009, MSEI solicited bids for the next phase (ʺTHS2ʺ). The bid\\n\\ndocuments for THS2 indicated that MSEI had the responsibility to provide the\\n\\nsoftware for the station and server source code to be used in the project. In April\\n\\n2010, MSEI awarded the project to MTA, a competitor of Universal, which\\n\\nsubmitted a lower bid for the project. On April 8, 2010, MSEI and MTA entered\\n\\ninto an agreement (the ʺMTA Agreementʺ). On April 16, Universal and MTA\\n\\nwere notified by email that MSEI had ʺawarded the business to MTA for the THS\\n\\nline two project.ʺ J. Appʹx at 2878. MTA subsequently sought to purchase\\n\\nPolaris stations from Universal for use in THS2, but on August 4, 2010, Universal\\n\\ndeclined to sell them to MTA. Thereafter, MSEI downloaded the source code\\n\\nfrom the individual Polaris stations and the server source code that Universal\\n\\ngave to MSEI on delivery of phase one; it then gave the code to MTA to use in\\n\\nthe production of THS2. MSEI and MTA subsequently modified the server\\n\\nsource code to meet the requirements of THS2.\\n\\n\\n\\n\\n 6\\n\\f The EPA contains several provisions relating to the partiesʹ\\n\\nintellectual property rights. Section 8 is entitled ʺIntellectual Property.ʺ Section\\n\\n8.2(d) provides that\\n\\n [i]f [Universal] uses any Pre‐Existing Intellectual Property in connection\\n with this Agreement, [Universal] hereby grants MSEI, MSEIʹs\\n subcontractors, or suppliers, a non‐exclusive, royalty‐free, worldwide,\\n perpetual license, to use, reproduce, display, of the Pre‐Existing\\n Intellectual Property for MSEIʹs internal use only.\\n\\nJ. Appʹx at 2336. ʺPre‐Existing Intellectual Propertyʺ is defined as ʺany trade\\n\\nsecret, invention, work of authorship, mask work or protectable design that has\\n\\nalready been conceived or developed by anyone other than MSEI before\\n\\n[Universal] renders any services under the Agreement.ʺ Id.\\n\\n Exhibit E to the EPA, entitled ʺEquipment Acceptance Form,ʺ\\n\\ncontained a blank form for the parties to fill in upon final delivery and\\n\\nacceptance.\\n\\n On October 31, 2008, Universal and MSEI signed a negotiated ʺFinal\\n\\nCustomer Acceptanceʺ letter, which stated, among other things, that Universal\\n\\n agrees to provide the THS server code as is with the understanding that\\n MSEI assumes the risk of invalidating the warranty in the event a change\\n made by MSEI to the source code causes damage to any of the THS line\\n hardware.\\n\\nJ. Appʹx at 2361.\\n\\n\\n\\n 7\\n\\fB. Procedural Background\\n\\n On July 15, 2013, Universal brought this action against MSEI and\\n\\nMTA in the Northern District of New York, alleging copyright infringement,\\n\\nmisappropriation of trade secrets, breach of contract, unfair competition, unjust\\n\\nenrichment, and promissory estoppel. On February 24, 2017, the district court\\n\\ngranted judgment on the pleadings and dismissed Universalʹs claim for\\n\\npromissory estoppel and its claims against MSEI for unjust enrichment and\\n\\nunfair competition. Universal does not challenge those rulings on appeal.\\n\\n In July and August of 2017, the parties proceeded to trial before a\\n\\njury on the remaining claims ‐‐ breach of contract, copyright infringement,\\n\\nmisappropriation of trade secrets, and as to MTA only, unjust enrichment1 and\\n\\nunfair competition. After the close of Universalʹs case‐in‐chief, the district court\\n\\nreserved judgment on defendantsʹ motion for judgment as a matter of law. After\\n\\nsix days of trial and following the close of the evidence on August 7, the district\\n\\ncourt orally granted defendantsʹ renewed motions for judgment as a matter of\\n\\nlaw. As the district court explained: ʺThe whole issue here is whether or not\\n\\n\\n\\n\\n1 Universal has abandoned on appeal its claim against MTA for unjust enrichment.\\nIt has thus waived any challenge to the ruling below. See Norton v. Samʹs Club, 145 F.3d\\n114, 117 (2d Cir. 1998).\\n 8\\n\\funder the arrangements between the parties, contractual and otherwise, MSEI\\n\\nhad permission and/or ownership in the property that was transmitted to them.ʺ\\n\\nSpec. Appʹx at 3. The district found as a matter of law that Universal (1) had a\\n\\nprotected intellectually property interest in the system source code, (2)\\n\\ntransferred copies of that property to MSEI, and (3) offered no evidence that\\n\\nMSEI had exceeded the scope of its license under the EPA by giving MTA the\\n\\nintellectual property. These findings were dispositive of all claims. The court\\n\\nreaffirmed its ruling in a nine‐page order issued the following day. It entered\\n\\njudgment August 9, 2017.\\n\\n This appeal followed.\\n\\n DISCUSSION\\n\\n Universal argues that the district court erred in granting defendantsʹ\\n\\nrenewed motion for judgment as a matter of law. In short, it contends that the\\n\\ndistrict courtʹs construction of the EPA is incorrect as a matter of law and that it\\n\\ndemonstrated the existence of factual questions that should have been resolved\\n\\nby a jury.\\n\\n The district court based its grant of judgment as a matter of law on a\\n\\nnumber of overlapping grounds: it ruled that (1) the license granted by\\n\\n\\n\\n 9\\n\\fUniversal to MSEI pursuant to § 8.2(d) of the EPA authorized MSEI and MTAʹs\\n\\nuse of the source code; (2) the Final Customer Acceptance letter granted MSEI\\n\\nownership of the source code; (3) the evidence offered by Universal as to\\n\\ndamages was insufficient as a matter of law; (4) Universalʹs copyright and\\n\\nmisappropriation of trade secrets claims were time barred; (5) Universalʹs breach\\n\\nof contract claim was preempted by the Copyright Act; and (6) Universalʹs\\n\\ncopyright claim failed because MSEIʹs use of the source code was authorized by\\n\\n17 U.S.C. § 117(a).\\n\\n We review de novo both the grant of judgment as a matter of law and\\n\\nthe district courtʹs construction of the agreements. Phillips v. Audio Active Ltd.,\\n\\n494 F.3d 378, 384 (2d Cir. 2007); Cash v. Cty. of Erie, 654 F.3d 324, 332‐33 (2d Cir.\\n\\n2011). In reviewing a grant of judgment as a matter of law, we construe the\\n\\nevidence in the light most favorable to Universal, drawing all reasonable\\n\\ninferences in its favor, and without making credibility determinations or\\n\\nweighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\\n\\n(2000).\\n\\n It is undisputed that in completing phases two and three, MSEI and\\n\\nMTA used source code that Universal had provided for phase one. The principal\\n\\n\\n\\n 10\\n\\fissue presented is whether the EPA permitted them to do so. We hold that\\n\\ndefendantsʹ conduct did not breach § 8.2(d) of the EPA and was non‐infringing\\n\\nbecause that provision permitted defendants to reproduce and use the station\\n\\nand server source code; defendantsʹ adaptation of the server source code was\\n\\nnon‐infringing because it was authorized by 17 U.S.C. § 117(a); Universalʹs\\n\\ncontract claim that defendantsʹ modification of the server source code breached\\n\\nthe EPA is preempted by the Copyright Act; Universalʹs claim of\\n\\nmisappropriation of trade secrets is time‐barred; and MTA did not unfairly\\n\\ncompete with Universal because its conduct was not in bad faith. Accordingly,\\n\\nwe affirm.\\n\\nI. Copyright Infringement\\n\\n A. Applicable Law\\n\\n Universalʹs copyright infringement claim turns on whether\\n\\ndefendantsʹ conduct fell within the scope of the non‐exclusive license provided in\\n\\nthe EPA. This is so because a valid license ʺimmunizes the licensee from a charge\\n\\nof copyright infringement, provided that the licensee uses the copyright as\\n\\nagreed with the licensor.ʺ Davis v. Blige, 505 F.3d 90, 100 (2d Cir. 2007). Where a\\n\\nclaim turns on the scope of a license, ʺthe copyright owner bears the burden of\\n\\n\\n\\n 11\\n\\fproving that the defendantʹs [use] was unauthorized.ʺ Tasini v. N.Y. Times Co.,\\n\\n206 F.3d 161, 171 (2d Cir. 2000) (quoting Bourne v. Walt Disney Co., 68 F.3d 621,\\n\\n631 (2d Cir. 1995)).\\n\\n Whether the partiesʹ license agreement encompasses the defendantsʹ\\n\\nactivities is ʺessentiallyʺ a question of contract interpretation. See Bourne, 68 F.3d\\n\\nat 631. ʺ[A] written agreement that is complete, clear and unambiguous on its\\n\\nface must be enforced according to the plain meaning of its terms.ʺ Greenfield v.\\n\\nPhilles Records, Inc., 98 N.Y.2d 562, 569 (2002) (citing R/S Assocs. v. N.Y. Job Dev.\\n\\nAuth., 98 N.Y.2d 29, 32 (2002)).2 Where, however, ʺthe language used is\\n\\nsusceptible to differing interpretations, each of which may be said to be as\\n\\nreasonable as another, then the interpretation of the contract becomes a question\\n\\nof fact for the jury and extrinsic evidence of the partiesʹ intent properly is\\n\\nadmissible.ʺ Bourne, 68 F.3d at 629 (internal quotations marks omitted). The\\n\\nexistence of an ambiguity, if any, is to ʺbe ascertained from the face of an\\n\\nagreement without regard to extrinsic evidence.ʺ Reiss v. Fin. Perf. Corp., 97\\n\\n\\n\\n\\n2\\n The EPA does not contain a choice‐of‐law provision, but the parties agree that\\nNew York law applies. See Federal Ins. Co. v. Am. Home Assur. Co., 639 F.3d 557, 566 (2d\\nCir. 2011) (noting that where, during the course of litigation, ʺthe parties agree that New\\nYork law controls, this is sufficient to establish choice of lawʺ).\\n 12\\n\\fN.Y.2d 195, 199 (2001); see also Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co.,\\n\\n411 F.3d 384, 390 (2d Cir. 2005).\\n\\n B. Application\\n\\n We first consider whether the EPA unambiguously permitted MSEI\\n\\nto transfer the source code to MTA for reproduction and use in subsequent\\n\\nphases of the THS. We next consider whether MSEI or MTAʹs modification of\\n\\nUniversalʹs pre‐existing intellectual property was infringing. We hold, for the\\n\\nreasons discussed below, that the EPA unambiguously permitted MSEI and\\n\\nMTA to reproduce and use Universalʹs pre‐existing intellectual property in\\n\\nsubsequent phases of the THS. Defendantsʹ conduct was, therefore, not\\n\\ninfringing. We further conclude that MSEI and MTAʹs adaptation of the server\\n\\nsource code for use in additional testing stations was authorized by 17 U.S.C.\\n\\n§ 117(a) and thus non‐infringing.\\n\\n 1. Section 8.2(d) of the EPA Unambiguously Permitted MSEI\\n and MTA to Reproduce Universalʹs Pre‐Existing Source Code\\n\\n Universal argues that the EPA plainly prohibited MSEI from\\n\\nfurnishing MTA with the server and station source code to replicate the THS. It\\n\\nargues in the alternative that the relevant provisions of the EPA are ambiguous\\n\\nand that therefore their interpretation could not be resolved as a matter of law.\\n\\n 13\\n\\fWe disagree and hold that the EPA unambiguously permitted MSEI and MTA to\\n\\nreproduce Universalʹs source code for use in subsequent phases of the THS ‐‐\\n\\nconduct that constituted internal use.\\n\\n Section 8.2(d) of the EPA provides that ʺ[i]f [Universal] uses any Pre‐\\n\\nExisting Intellectual Property in connection with this Agreement, [Universal]\\n\\nhereby grants MSEI, MSEIʹs subcontractors, or suppliers, a non‐exclusive,\\n\\nroyalty‐free, worldwide, perpetual license to, use, reproduce, display, of the Pre‐\\n\\nExisting Intellectual property for MSEIʹs internal use only.ʺ J. Appʹx at 2336. It\\n\\nwas Universalʹs burden to prove that MSEI exceeded the scope of this license.\\n\\nSee Tasini, 206 F.3d at 171. To do so, it was required to prove that (1) MSEI or its\\n\\nʺsubcontractorʺ or ʺsupplierʺ (2) did more than ʺuse, reproduce, displayʺ for\\n\\nMSEIʹs ʺinternal use onlyʺ (3) Universalʹs ʺPre‐Existing Intellectual Property.ʺ\\n\\n First, MTA is a ʺsupplierʺ of MSEI. The plain meaning of ʺsupplierʺ\\n\\nunambiguously includes a component manufacturer like MTA. See Supplier,\\n\\nBlackʹs Law Dictionary (10th ed. 2014) (defining ʺsupplierʺ as ʺ[a] person or\\n\\nbusiness engaged, directly or indirectly, in making a product available to\\n\\nconsumersʺ); Supplier, Oxford English Dictionary (2d ed. 1989) (defining\\n\\nʺsupplierʺ as ʺone who . . . furnishes something neededʺ). Indeed, in its trial brief\\n\\n\\n\\n 14\\n\\fto the district court, Universal twice used the term ʺsupplierʺ in reference to\\n\\nMTA. J. Appʹx at 679, 685. Universalʹs argument that MTA is not a supplier thus\\n\\nfails.\\n\\n Second, MSEI and MTA had license to ʺuse, reproduce, displayʺ the\\n\\nintellectual property for MSEIʹs ʺinternal use only.ʺ J. Appʹx at 2336. The plain\\n\\nmeaning of ʺinternal useʺ clearly and unambiguously encompasses MSEIʹs\\n\\nagreement to permit its supplier to use the software to produce subsequent\\n\\nphases of the THS. There is no evidence that the source code was used by MSEI\\n\\nand MTA for anything other than developing and implementing phases two and\\n\\nthree of MSEIʹs internal test handling system.\\n\\n Universal contends that ʺinternal useʺ was meant to limit the license\\n\\nof ʺthird parties ‐‐ subcontractors and suppliers ‐‐ whose products, components,\\n\\nor services MSEI would be using internally as it tested products on Universalʹs\\n\\nTHS lineʺ at MSEIʹs premises. Appellantʹs Br. at 25; see also Appellantʹs Reply Br.\\n\\nat 12 (ʺMSEIʹs external provision of Universalʹs software to MTA to build the lines\\n\\nviolated Section 8.2(d).ʺ (emphasis in original)). We are unconvinced.\\n\\n This argument is premised on a physical internal‐external\\n\\ndichotomy, whereby a supplierʹs ʺuse, reproduc[tion], [or] displayʺ of Universalʹs\\n\\n\\n\\n 15\\n\\fintellectual property on MSEIʹs premises would be permitted, while the same use\\n\\nor reproduction off site would violate the license. But this cannot be the partiesʹ\\n\\nintent, because by its terms the license is ʺworldwideʺ in scope and extends to\\n\\nMSEIʹs suppliers and subcontractors. See EPA § 8.2(d). A license cannot\\n\\nsimultaneously be worldwide and limited to the physical confines of the\\n\\nlicenseeʹs premises. The more natural understanding of ʺinternal useʺ in this\\n\\ncontext is that the pre‐existing intellectual property could be used by or for\\n\\nMSEIʹs existing business ‐‐ not for resale or for the use or benefit of others. See\\n\\nInternal, Oxford English Dictionary (3d ed. 2015) (defining ʺinternalʺ as ʺaffairs\\n\\nand activities within an institution, organization, department, etc.; relating to\\n\\nsuch affairs or activities; applying or used within an organizationʺ); see also\\n\\nAnalect LLC v. Fifth Third Bancorp, 380 F. Appʹx 54, 58 (2d Cir. 2010) (summary\\n\\norder) (finding that contract prohibiting resale and distribution by purchaser did\\n\\nnot prohibit ʺinternal useʺ); Norwest Corp. v. C.I.R., 110 T.C. 454, 458 (1998)\\n\\n(ʺ[P]etitioner engaged in numerous projects involving the development of\\n\\ninternal use software ‐‐ that is, software developed solely for petitionerʹs internal\\n\\nbusiness and management purposes.ʺ). In the context of computer software, the\\n\\n\\n\\n\\n 16\\n\\fon‐premises, off‐premises distinction makes even less sense, given the nature of\\n\\nsoftware and source code.\\n\\n This understanding is reinforced by our recent holding that ʺunder\\n\\nlong‐established principles of agency law, a licensee under a non‐exclusive\\n\\ncopyright license may use third‐party assistance in exercising its license rights\\n\\nunless the license expressly provides otherwise.ʺ Great Minds v. Fedex Office &\\n\\nPrint Servs., Inc., 886 F.3d 91, 94 (2d Cir. 2018). Here, the license expressly\\n\\nprovided that the rights extended to MSEIʹs suppliers, which surely included\\n\\nMTA. Hence, MSEI and MTAʹs reproduction of the source code for MSEIʹs\\n\\ninternal use did not, as a matter of law, exceed the scope of the license. Because\\n\\nthere is nothing in the record to suggest that the source code was used for\\n\\nanything other than for MSEI in subsequent phases of its THS, MSEIʹs provision\\n\\nof the source code to MTA and MTAʹs use of the source code for MSEIʹS benefit\\n\\ndid not exceed the scope of the license, and thus was non‐infringing.\\n\\n 2. Modification of the Source Code was Authorized by 17 U.S.C.\\n § 117(a)\\n\\n We turn next to the question whether MSEI and MTA did more than\\n\\nʺuse, reproduce, [or] displayʺ Universalʹs pre‐existing source code ‐‐ that is,\\n\\n\\n\\n\\n 17\\n\\fwhether it modified the source code and, if so, whether the modification\\n\\ninfringed Universalʹs copyright.\\n\\n a. MSEI and MTA Modified the Server Source Code\\n\\n As Universal contends, evidence at trial showed that the server\\n\\nsource code that MSEI possessed differed from that delivered by Universal in\\n\\nOctober of 2008. Universalʹs expert witness Richard Hooper was ʺasked to\\n\\ncompare two sets of server source code.ʺ J. Appʹx at 1719. The first set of source\\n\\ncode was the THS server source code that Universal had in its files. The second\\n\\nset was the source code as it existed on MSEIʹs system at the time it was\\n\\nproduced in the course of litigation. Hooper testified that the server source code\\n\\nconsists of twenty or thirty individual files ʺthat hold the source code,ʺ which\\n\\nhave descriptive names like ʺAssemblyStationManager,ʺ ʺLogStationManagerʺ,\\n\\nʺMessageManager,ʺ ʺRF/ShakerManager,ʺ and ʺFeederShakerManager.ʺ Id. at\\n\\n1720‐23. He proceeded to show the jury a demonstrative, which included\\n\\nexcerpted line‐by‐line comparisons of the Universal and MSEI source code. He\\n\\nnoted that although the codes were nearly ʺidentical,ʺ there were ʺsome changes\\n\\nthat were made to the MSEI source code.ʺ Id. at 1724. For instance, the\\n\\nʺLogStationManagerʺ files were ʺ99.4 percent . . . exactly the same.ʺ Id. at 1725.\\n\\nHooper concluded that ʺMSEI started with the Universal source code and then\\n 18\\n\\fmade some changes to it. They added lines of code to it and they deleted lines of\\n\\ncode from it.ʺ Id. He also concluded that none of the source code was publicly\\n\\navailable.\\n\\n The conclusion that the server source code was modified by MSEI or\\n\\nMTA after delivery by Universal was reinforced by Christopher Demuth, who\\n\\nhelped Universal to develop the sever source code and was subsequently hired\\n\\nby MSEI to make modifications. DeMuth testified that in October 2009, MSEI\\n\\ncontacted him with a ʺpunch list of some features they wanted added, some\\n\\nchanges they wanted made to help improve efficiency of the line.ʺ Id. at 1633.\\n\\nHe made various modifications over the course of several years, in particular\\n\\nbecause MSEI was ʺworking on building another THS line and they needed\\n\\nmodifications to the THS server to support . . . communicating with all of the\\n\\n[new] stations.ʺ Id. at 1635‐38. Thus, the server source code was modified.\\n\\n Unlike the server source code, Universal does not seriously contend\\n\\nthat MSEI and MTA modified the station source code. Indeed, there is nothing in\\n\\nthe voluminous record indicating that the station software was modified.\\n\\nAlthough the MTA Agreement indicates that MTA would be required to\\n\\nʺ[m]odify, if necessary, and install SWʺ (SW means software) for each of the\\n\\n\\n\\n 19\\n\\fstations, id. at 2434‐35, it would be speculative to conclude, without something\\n\\nmore, that the station software was actually modified. We therefore proceed to\\n\\nconsider only whether MSEIʹs modification of the server source code was\\n\\nauthorized by 17 U.S.C. § 117(a).\\n\\n b. The Server Source Code Modifications Were Authorized\\n by 17 U.S.C. § 117(a)\\n\\n It is axiomatic that ʺ[a]n unlicensed use of the copyright is not an\\n\\ninfringement unless it conflicts with one of the specific exclusive rights conferred\\n\\nby the copyright statute.ʺ Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.\\n\\n417, 447 (1984). The Copyright Act grants copyright holders a bundle of\\n\\nexclusive rights, including the rights to ʺreproduce . . . in copies,ʺ ʺprepare\\n\\nderivative works,ʺ ʺdistribute copies,ʺ ʺperform,ʺ and ʺdisplayʺ their works. 17\\n\\nU.S.C. § 106. Source code, the human‐readable literal elements of software, is\\n\\ncopyrightable. See Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1355‐56 (Fed. Cir.\\n\\n2014). It is also well established that copyright owners may grant others license\\n\\nto use their rights. John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394, 410 (2d Cir.\\n\\n2018). But because copyright licenses prohibit any use not authorized, a licensee\\n\\ninfringes the ownerʹs copyright if its use exceeds the scope of its license. Gilliam\\n\\nv. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976) (noting that ʺ[o]ne who obtains\\n\\n\\n 20\\n\\fpermission to use a copyrightedʺ work ʺmay not exceed the specific purpose for\\n\\nwhich permission was grantedʺ and concluding that ʺunauthorized editing of the\\n\\nunderlying work, if proven, would constitute an infringement of the copyright in\\n\\nthat work similar to any other use of a work that exceeded the license granted by\\n\\nthe proprietor of the copyrightʺ); see also S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081,\\n\\n1088 (9th Cir. 1989). Thus, § 8.2(d) of the EPA arguably prohibits, at least\\n\\nimpliedly, MSEI and its suppliers from modifying Universalʹs pre‐existing\\n\\nintellectual property.\\n\\n The Copyright Act, however, provides an affirmative defense that\\n\\nallows the owner of a copy of a computer program to copy or modify the\\n\\nprogram for limited purposes without incurring liability for infringement. See 17\\n\\nU.S.C. § 117(a). Section 117(a) provides, in relevant part:\\n\\n Notwithstanding the provisions of section 106 [which lists the exclusive\\n rights of a copyright holder], it is not an infringement for the owner of a\\n copy of a computer program to make or authorize the making of another\\n copy or adaptation of that computer program provided:\\n\\n (1) that such a new copy or adaptation is created as an essential\\n step in the utilization of the computer program in conjunction with\\n a machine and that it is used in no other manner . . . .\\n\\nThus, a defendant seeking protection under § 117(a) must demonstrate that the\\n\\nnew adaptation (1) was made by the ʺowner of a copy of [the] computer\\n\\n\\n 21\\n\\fprogram,ʺ (2) was ʺcreated as an essential step in the utilization of the computer\\n\\nprogram in conjunction with a machine,ʺ and (3) was ʺused in no other manner.ʺ\\n\\n17 U.S.C. § 117(a); see Krause v. Titleserv, Inc., 402 F.3d 119, 122 (2d Cir. 2005). We\\n\\nconsider each requirement in turn.\\n\\n 1. MSEI Is the ʺowner of a copy of a computer\\n programʺ\\n\\n We have held that ʺownerʺ as used in § 117(a) does not require\\n\\nformal title in a program copy. Titleserv, 402 F.3d at 123. Instead, ʺcourts should\\n\\ninquire into whether the party exercised sufficient incidents of ownership over a\\n\\ncopy of the program to be sensibly considered the owner of the copy for\\n\\npurposes of § 117(a).ʺ Id. at 124.\\n\\n In Titleserv, we found the following facts sufficient to consider\\n\\ndefendant an owner under § 117(a): defendant paid plaintiff ʺsubstantial\\n\\nconsideration to develop the programs for its sole benefitʺ; plaintiff ʺcustomized\\n\\nthe software to serve [defendantʹs] operationsʺ; plaintiff stored copies ʺon a\\n\\nserver owned by [defendant]ʺ; plaintiff ʺnever reserved the right to repossess the\\n\\ncopies used by [defendant] and agreed that [defendant] had the right to continue\\n\\nto possess and use the programs forever, regardless whether its relationship with\\n\\n\\n\\n\\n 22\\n\\f[defendant] terminatedʺ; and ʺ[defendant] was similarly free to discard or\\n\\ndestroy the copies any time it wished.ʺ Id.\\n\\n For similar reasons, we conclude as a matter of law that MSEI\\n\\nowned copies of the server software within the meaning of § 117(a). MSEI paid\\n\\nUniversal over $1 million for the combined hardware and software solution.\\n\\nUniversal customized the software to serve MSEIʹs precise needs.3 Universal\\n\\nexpressly ʺprovidedʺ a copy of the server software to MSEI with the sole\\n\\ncondition that ʺMSEI assume[d] the risk of invalidating the warranty in the event\\n\\na change made by MSEI to the source code cause[d] damage to any of the THS\\n\\nline hardware.ʺ J. Appʹx at 2361. Universal granted MSEI and its suppliers\\n\\nbroad rights to the server source code ‐‐ a perpetual, worldwide license to use,\\n\\nreproduce, and display the software for MSEIʹs internal use. J. Appʹx at 2336.\\n\\nAlthough the terms of the EPA expired on December 31, 2012, MSEIʹs rights to\\n\\n\\n\\n\\n3 Frank Caudrillier, Universalʹs project manager for the THS, testified that ʺthe\\nTHS server was developed based on . . . some common tools that we had . . . developed\\npreviously, and then customized . . . to respond to the requirements of [MSEI].ʺ J.\\nAppʹx at 1511. Kevin Ford, Universalʹs lead software engineer, testified that the server\\nsource code was ʺcreated specifically for the THS lineʺ to ʺimplement[] MSEIʹs\\nrequirements.ʺ Id. at 1668‐69. A change order in evidence shows that modifications\\nwere made to ʺTHS interface, module information table, reseat and correlate,ʺ which\\nFord testified were modifications to the server source code. Id. at 1670‐71.\\n\\n 23\\n\\fthe software ʺcontinue perpetually and do not terminate upon completion of the\\n\\nservices.ʺ Id. at 2337. Nothing in the arrangement between MSEI and Universal\\n\\nindicates that MSEI was in any way restricted from discarding or disposing of\\n\\nthe software as it wished. For all of these reasons, MSEI was an owner of the\\n\\nstation and server source code under § 117(a).\\n\\n Universal contends that MSEI was not an owner because § 8.2(d)\\n\\nʺseverely limitedʺ MSEIʹs rights to the software. For support, it cites DSC\\n\\nCommunications Corp. v. Pulse Communications, Inc., 170 F.3d 1354 (Fed. Cir. 1999).\\n\\nBut as we noted in Titleserv, the defendant in DSC Communications was expressly\\n\\nprohibited from using the software on hardware other than that provided by\\n\\nplaintiff. 402 F.3d at 123. MSEI faced no such prohibition. In fact, under the\\n\\nEPA, MSEI was authorized to use and reproduce the software at will so long as\\n\\nits uses were ʺinternal.ʺ\\n\\n Universalʹs argument does find some additional support from the\\n\\nNinth Circuit, which has held ʺthat a software user is a licensee rather than an\\n\\nowner of a copy where the copyright owner (1) specified that the user is granted\\n\\na license; (2) significantly restricts the userʹs ability to transfer the software; and\\n\\n(3) imposes notable use restrictions.ʺ Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111\\n\\n\\n\\n 24\\n\\f(9th Cir. 2010) (footnote omitted). Although the EPA granted MSEI a license that\\n\\nwas limited to MSEIʹs internal use, it subsequently transferred a copy of the\\n\\nserver source code to MSEI with the sole condition that MSEI would be liable for\\n\\nany damage caused by modifications. J. Appʹx at 2361. Several Universal\\n\\nemployees, including its executives, as well as MSEI employees, testified that this\\n\\nprovision resolved the issue of ʺsource code ownership.ʺ Id. at 1048, 1270‐71,\\n\\n1453‐54, 1545, 2126‐27. In an email to MSEI on October 31, 2008 ‐‐ the date of\\n\\nfinal delivery ‐‐ Universal stated internally, ʺAs you can see, we are trying to get\\n\\naway from the Source Code.ʺ Id. at 2632. It then told MSEI, ʺwe are ready to let\\n\\nyou assume ownership of the line.ʺ Id. at 3009. Thereafter, Universal instructed\\n\\nits team to ʺget the source code to them todayʺ and to ʺbe sure it is packaged and\\n\\nready to [sic] (or email it to them or give them the key or whatever).ʺ Id. at 2632.\\n\\n Thus, for the purposes of applying § 117(a), a reasonably jury could\\n\\nonly find that MSEI owned a copy of the THS software.\\n\\n 2. The Adaptation was ʺcreated as an essential step\\n in the utilization of the computer program in\\n conjunction with a machineʺ\\n\\n To receive the protection of § 117(a), MSEI must also demonstrate\\n\\nthat its modification of the software was ʺan essential step in the utilization of the\\n\\ncomputer program[s] in conjunction with a machine.ʺ In Aymes v. Bonelli, the\\n 25\\n\\fdefendant retail store used programs to track inventory and sales, and generally\\n\\norganize its records. 47 F.3d 23, 24 (2d Cir. 1995). The defendants modified the\\n\\nprograms to keep them up‐to‐date and to ensure their compatibility with\\n\\nsuccessive generations of computer systems. Id. at 26. We held that the\\n\\nmodifications were essential to the defendantsʹ utilization of the programs within\\n\\nthe meaning of § 117(a)(1) because the ʺadaptations were essential to allow use of\\n\\nthe program[s] for the very purpose for which [they were] purchased.ʺ Id. at 27.\\n\\n In Titleserv, the defendant used the programs at issue ʺto track and\\n\\nreport on the status of client requests and other aspects of its operations.ʺ 402\\n\\nF.3d at 120. The defendant modified the programs by correcting bugs,\\n\\nʺperforming routine tasks necessary to keep the programs up‐to‐date and to\\n\\nmaintain their usefulness to [defendant],ʺ incorporating the programs into a new\\n\\nsystem implemented by defendant, and adding new capabilities to help ʺmake\\n\\nthe programs more responsive to the needs of [defendantʹs] business.ʺ Id. at 125.\\n\\nWe reiterated, as we originally held in Aymes, that ʺadaptation of the copy of\\n\\nthe[] software so that it would continue to function on the defendantsʹ new\\n\\ncomputer systemʺ constituted an ʺessential stepʺ within the meaning of § 117(a).\\n\\nId. at 126. We further held that the ʺaddition of new features,ʺ which ʺwere not\\n\\n\\n\\n 26\\n\\fstrictly necessary to keep the programs functioning, but were designed to\\n\\nimprove their functionality in serving the business for which they were created,ʺ\\n\\nwere also ʺessential.ʺ Id.; see also Final Report of the National Commission on New\\n\\nTechnological Uses of Copyrighted Works 13 (1978) [hereinafter ʺCONTU Reportʺ]\\n\\n(ʺ[A] right to make those changes necessary to enable the use for which it was\\n\\nboth sold and purchased should be provided. The conversion of a program from\\n\\none higher‐level language to another to facilitate use would fall within this right,\\n\\nas would the right to add features to the program that were not present at the\\n\\ntime of rightful acquisition.ʺ). In doing so, however, we noted an important\\n\\nlimitation: an ʺessentialʺ improvement ought not to ʺharm the interests of the\\n\\ncopyright proprietor.ʺ Id. at 129 (citing CONTU Report at 13).\\n\\n As Universalʹs witnesses testified, the copy of the server software\\n\\ngiven to MSEI was ʺpretty much identicalʺ to the copy owned by MSEI. J. Appʹx\\n\\nat 1724. The modifications that were made were undertaken ʺto help improve\\n\\nefficiency of the line,ʺ id. at 1633, and to enable the server software to ʺsupport\\n\\n. . . communicating with all of the [new] stations.ʺ Id. at 1635‐38. The\\n\\nmodifications were, therefore, ʺdesigned to improve [the server source codeʹs]\\n\\n\\n\\n\\n 27\\n\\ffunctionality in serving the business for which [it was] created.ʺ Titleserv, 402\\n\\nF.3d at 126.\\n\\n Universal claims that MSEIʹs provision of the source code to MTA ‐‐\\n\\nʺa competitorʺ of MSEI ‐‐ is exactly the sort of harm we indicated in Titleserv\\n\\nmight present ʺ[a] different scenario.ʺ Id. We disagree that this is the sort of\\n\\nharm envisioned by § 117(a). By its terms, § 117(a) permits the owner of a copy\\n\\nʺto make or authorize the making . . . of another adaptation.ʺ 17 U.S.C. § 117(a)\\n\\n(emphasis added). And, as we held above, Universal expressly authorized MSEI\\n\\nand its suppliers and subcontractors to use and reproduce the software at issue.\\n\\nTrue, alterations that ʺsomehow interfere[] with [a copyright ownerʹs] access to,\\n\\nor ability to exploit, the copyrighted workʺ might render modifications non‐\\n\\nessential under § 117(a), but where the copyright owner ʺenjoy[s] no less\\n\\nopportunity after . . . changes, than before, to use, market, or otherwise reap the\\n\\nfruits of the copyrighted programs that he created,ʺ the changes may properly be\\n\\nconsidered essential under § 117(a). Titleserv, 402 F.3d at 129.\\n\\n MSEIʹs use did not inhibit Universalʹs ability to market or sell its\\n\\nserver software to others, nor did it divulge sensitive Universal information or\\n\\nenrich MSEI or MTA at the expense of Universal. MSEI made and authorized the\\n\\n\\n\\n 28\\n\\fmaking of minor modifications, narrowly tailored to adapting the server\\n\\nsoftware for the use for which it was designed ‐‐ orchestration of the test handing\\n\\nstations to ensure the quality of MSEIʹs implantable medical devices.\\n\\n Accordingly, we hold that a reasonable jury could only find that the\\n\\nmodifications made by MSEI were essential as they allowed the existing server\\n\\nsoftware to interact with additional systems in the manner intended when the\\n\\nsource code was developed for MSEI.\\n\\n 3. The Adaptation was ʺused in no other mannerʺ\\n\\n Finally, to warrant the protection of § 117(a), MSEI must show that\\n\\nthe server software was ʺused in no other manner,ʺ that is, it was used only to\\n\\nmake an adaptation as an essential step in utilizing the software in conjunction\\n\\nwith the test handling system. Universal argues that MSEIʹs modification of the\\n\\nserver software to operate with new machines, rather than the existing machines\\n\\ncreated by Universal, defeats MSEIʹs claim to protection from § 117(a).\\n\\n ʺWhether a questioned use is a use in another manner . . . depend[s]\\n\\non the type of use envisioned in the creation of the program.ʺ Titleserv, 402 F.3d\\n\\nat 129. The server software was designed to be the ʺbrains of the operation,ʺ J.\\n\\nAppʹx at 988, which ʺsynchronize[d] the activities of the hardware and softwareʺ\\n\\nand was ʺresponsible for coordinating the movement of the module trays,ʺ id. at\\n 29\\n\\f2606. These are precisely the purposes for which MSEI and MTA made\\n\\nmodifications, as indicated in the Statement of Work. See id. at 2366 (ʺUpdate\\n\\nTHS Server software to add functionality for the new stations.ʺ); see also id. at\\n\\n2367 (ʺScope of the project . . . is first to replicate the existing system . . . , and\\n\\nthen expand this configuration to add the capability to add three . . . electrical\\n\\ntesters . . . , one RF testing stations and one Shaker test station.ʺ). There is\\n\\nnothing in the record to suggest that the server source code was used for any\\n\\npurpose other than to adapt the system to handle new testing stations for MSEIʹs\\n\\ninternal use. See Titleserv, 402 F.3d at 130 (ʺWhat is important is that the\\n\\ntransaction for which the programs are used is the type of transaction for which\\n\\nthe programs were developed.ʺ). Thus, MSEI ʺsimply increased the versatility of\\n\\nthe programs by allowing themʺ to interoperate with new test handling stations,\\n\\nwhich ʺconstitutes use in the same manner, with the benefit of an adaptation\\n\\nincreasing versatility.ʺ Id.\\n\\n Moreover, the server software customized by Universal for MSEI\\n\\nwas part of the first phase of MSEIʹs multi‐phased test handling system project.\\n\\nUniversal was aware that the project had additional phases when it signed the\\n\\nEPA, and at that time it had no guarantees that it would be chosen to supply the\\n\\n\\n\\n 30\\n\\flater phases. The addition of new systems was, therefore, a use contemplated at\\n\\nthe outset.4\\n\\n For the foregoing reasons, we conclude as a matter of law that it was\\n\\nnot an infringement for MSEI as the ʺowner of a copy of a computer program,ʺ or\\n\\nMTA as MSEIʹs supplier, to ʺmake or have made [an] adaptation,ʺ where ʺsuch\\n\\nadaptation was created as an essential step in the utilization of the computer\\n\\nprogram in conjunction with a machine and . . . in no other manner.ʺ 17 U.S.C.\\n\\n§ 117(a).\\n\\nII. Breach of Contract\\n\\n MSEI and MTAʹs use and reproduction of Universalʹs pre‐existing\\n\\nintellectual property for use in subsequent phases of the THS was non‐infringing\\n\\nbecause defendants were expressly licensed to do so under § 8.2(d) of the EPA.\\n\\nSee supra Part I.B.1. It necessarily follows that MSEIʹs use and reproduction of the\\n\\nsource code was not in breach of the EPA. See Davis, 505 F.3d at 100; Bourne, 68\\n\\nF.3d at 631. Universalʹs breach of contract claim is thus reduced to its assertion\\n\\nthat MSEI breached the EPA by modifying the server source code. We do not\\n\\n\\n\\n4 We note also that Universal was aware that the project to ʺreplicate the existing\\nsystemʺ was awarded to MTA in April 2010, J. Appʹx at 1014, 2878, and yet it did not\\nobject to MTAʹs provision of subsequent phases of the system, including modifying the\\nserver source code, until July 2013 when this action was filed.\\n 31\\n\\freach the merits of this question, however, because what remains of Universalʹs\\n\\nbreach of contract claim is preempted by the Copyright Act.\\n\\n The Copyright Act exclusively governs a claim when (1) the\\n\\nparticular work to which the claim is being applied falls within the type of works\\n\\nprotected by the Copyright Act under 17 U.S.C. §§ 102 and 103, and (2) the claim\\n\\nseeks to vindicate legal or equitable rights that are equivalent to one of the\\n\\nbundle of exclusive rights already protected by copyright law under 17 U.S.C.\\n\\n§ 106. Briarpatch L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004). ʺA\\n\\nstate law right is equivalent to one of the exclusive rights of copyright if it may\\n\\nbe abridged by an act which, in and of itself, would infringe one of the exclusive\\n\\nrights.ʺ Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 430\\n\\n(2d Cir. 2012) (internal quotation marks omitted). ʺʹBut if an extra element is\\n\\nrequired instead of or in addition to the acts of reproduction, performance,\\n\\ndistribution or display, in order to constitute a state‐created cause of action,ʹ\\n\\nthere is no preemption.ʺ Id. (quoting Comput. Assocs. Intʹl, Inc. v. Altai, Inc., 982\\n\\nF.2d 693, 716 (2d Cir. 1992)). Preemption, therefore, turns on ʺwhat [the] plaintiff\\n\\nseeks to protect, the theories in which the matter is thought to be protected and\\n\\n\\n\\n\\n 32\\n\\fthe rights sought to be enforced.ʺ Comput. Assocs., 982 F.2d at 716 (internal\\n\\nquotation marks omitted).\\n\\n As we have recognized, ʺpreemption cannot be avoided simply by\\n\\nlabeling a claim ʹbreach of contract.ʹʺ Forest Park, 683 F.3d at 432; see also 5\\n\\nNimmer on Copyright § 19D.03[C][2][b] (suggesting that a contract that ʺdoes\\n\\nnot purport to give [the plaintiff] any protection beyond that provided . . . by\\n\\ncopyright law itselfʺ would be preempted). In Forest Park, we held the contract at\\n\\nissue not to be preempted because it included an ʺextra elementʺ of a promise to\\n\\npay, and plaintiff sought contract damages when defendant used plaintiffʹs\\n\\ncopyrighted work without paying for the privilege. Forest Park, 683 F.3d at 428.\\n\\nHere, by contrast, there is no dispute over payment. Universal does not argue\\n\\nthat defendants violated the EPA by failing to pay for use of the intellectual\\n\\nproperty.\\n\\n What remains of Universal breach of contract claim is that MSEIʹs\\n\\nmodification of the source code exceeded the scope of the license contained in the\\n\\nEPA. This claim does not include an ʺextra elementʺ that is different from those\\n\\nof its copyright infringement claim. The prohibition against modification is not\\n\\nexplicit in the EPA; it is, instead, arguably implied because copyright licenses are\\n\\n\\n\\n 33\\n\\fassumed to permit those uses not expressly authorized. Gilliam, 538 F.2d at 20.\\n\\nUniversal therefore necessarily seeks to vindicate its exclusive rights under 17\\n\\nU.S.C. § 106. That Universal and MSEI are in contractual privity does nothing to\\n\\nchange the fact that vindication of an exclusive right under the Copyright Act,\\n\\nread into a license by negative implication, is preempted by the Copyright Act.\\n\\nSee 3 Nimmer § 10.15[A] (noting that ʺuse by the grantee without authority from\\n\\nthe grantorʺ leads to the legal consequence ʺthat the granteeʹs conduct may\\n\\nconstitute copyright infringementʺ). In Kamakazi Music Corp. v. Robbins Music\\n\\nCorp., we held that a licensorʹs suit against a licensee whose license had expired\\n\\nwas for copyright infringement, not breach of contract. 684 F.2d 228, 230 (2d Cir.\\n\\n1982). This rationale extends equally to a licensor whose use arguably exceeds\\n\\nthe scope, rather than the duration, of a license. See Marshall v. New Kids On The\\n\\nBlock Pʹship, 780 F. Supp. 1005, 1008‐09 (S.D.N.Y. 1991). Because this portion of\\n\\nUniversalʹs breach of contract claim seeks solely to vindicate an exclusive right\\n\\nunder the Copyright Act, it is preempted. It thus fails as a matter of law because,\\n\\nas discussed supra Part I.B.2, the affirmative defense of § 117(a) bars recovery to\\n\\nUniversal on the theory that MSEI or MTAʹs modifications to the server source\\n\\ncode infringed Universalʹs copyright.\\n\\n\\n\\n 34\\n\\fIII. Misappropriation of Trade Secrets\\n\\n A plaintiff claiming misappropriation of a trade secret must prove\\n\\nthat (1) ʺit possessed a trade secret,ʺ and (2) the trade secret was used by\\n\\ndefendant ʺin breach of an agreement, confidence, or duty, or as a result of\\n\\ndiscovery by improper means.ʺ Integrated Cash Mgmt. Servs., Inc. v. Digital\\n\\nTransactions, Inc., 920 F.2d 171, 173 (2d Cir. 1990). We do not reach the merits of\\n\\nthis claim, however, because it is time‐barred by the applicable statute of\\n\\nlimitations.\\n\\n In New York, a cause of action for the misappropriation of trade\\n\\nsecrets is governed by a three‐year statute of limitations, while claims for\\n\\nequitable relief are subject to a six‐year statute of limitations. Compare N.Y.\\n\\nC.P.L.R. § 214(4) (providing three‐year‐statute of limitations for claims of\\n\\nmisappropriation of trade secrets), with id. § 213(1) (providing six‐year statute of\\n\\nlimitations for claims seeking equitable relief). Universal argues that its claim for\\n\\ninjunctive relief is governed by the more generous six‐year limitations period.\\n\\n ʺ[C]ourts determine the applicable limitations period . . . by\\n\\nanalyzing the substantive remedy that the plaintiff seeks.ʺ ABS Entmʹt, Inc. v.\\n\\nCBS Corp., 163 F. Supp. 3d 103, 108 (S.D.N.Y. 2016) (applying New York law).\\n\\n\\n\\n 35\\n\\fʺWhere the remedy sought is purely monetary in nature, courts construe the suit\\n\\nas alleging ʹinjury to propertyʹ within the meaning of CPLR 214(4), which has a\\n\\nthree‐year limitations period.ʺ IDT Corp. v. Morgan Stanley Dean Witter & Co., 12\\n\\nN.Y.3d 132, 139 (2009). In IDT, the equitable relief was incidental to the damages\\n\\nsought, so ʺlooking to the reality, rather than the form, of [the] action,ʺ the New\\n\\nYork State Court of Appeals concluded that IDT principally sought a monetary\\n\\nremedy and, thus, held that the three‐year statute of limitations applied. Id. at\\n\\n139‐40. Similarly, in this case, the main remedy that Universal seeks is monetary\\n\\ndamages. Universalʹs Third Amended Complaint requested that it be awarded\\n\\nprofits and a royalty, not just an injunction, in connection with its\\n\\nmisappropriation of trade secrets claim, as well as double damages, punitive\\n\\ndamages, and attorneysʹ fees. Therefore, because the reality of the cause of action\\n\\nis that it is one for damages, not injunctive relief, the three‐year statute of\\n\\nlimitations applies.\\n\\n Universal argues that this statute of limitations should be tolled or\\n\\nextended on a continuing tort theory. ʺA continuing tort theory may apply . . .\\n\\nwhere the plaintiff alleges that a defendant has kept a secret confidential but\\n\\ncontinued to use it for commercial advantage.ʺ Andrew Greenberg, Inc. v. Svane,\\n\\n\\n\\n 36\\n\\fInc., 830 N.Y.S.2d 358, 362 (App. Div. 2007). ʺWhere, however, the ʹplaintiff had\\n\\nknowledge of the defendantʹs misappropriation and use of its trade secret, the\\n\\ncontinuing tort doctrine does not apply.ʹʺ PaySys Intʹl, Inc. v. Atos Se, No. 14‐\\n\\n10105, 2016 WL 7116132, at * 9 (S.D.N.Y. Dec. 5, 2016) (quoting VoiceOne\\n\\nCommcʹns, LLC v. Google Inc., No. 12‐9433, 2014 WL 10936546, at *10 (S.D.N.Y.\\n\\nMar. 31, 2014)) (citing cases). Here, Universal had knowledge of MSEI and\\n\\nMTAʹs alleged misappropriation and use of its trade secret and, accordingly, the\\n\\ncontinuing tort theory does not apply.\\n\\n The evidence shows that Universal was put on notice of its\\n\\nmisappropriation of trade secrets claim more than three years prior to filing its\\n\\ncomplaint on July 15, 2013. Accrual of the statute of limitations begins when ʺa\\n\\nreasonably diligent person in plaintiffʹs position would have been put on inquiry\\n\\nas to theʺ claim. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992). Universalʹs\\n\\nexecutive chairman, Jean‐Luc Pelissier, testified that in 2009 he understood that\\n\\nthere were other companies besides Universal bidding on THS2. He also\\n\\ntestified that he understood that when MSEI said it wanted to replicate the THS\\n\\nline, that included the software. On April 16, 2010, MSEI sent an email to\\n\\nUniversal informing Universal that MSEI awarded the business for the THS\\n\\n\\n\\n 37\\n\\freplication project to MTA. Based on this evidence, a reasonably diligent person\\n\\nwould have been put on notice of the misappropriation of trade secrets claim ‐‐\\n\\nthat is, that MSEI gave Universalʹs software and source code to MTA so MTA\\n\\ncould replicate and modify it to build the second THS line. Yet Universal did not\\n\\nassert the claim until more than three years later, in July of 2013. Thus,\\n\\nUniversalʹs claim is time‐barred.\\n\\nIV. Unfair Competition\\n\\n Universalʹs remaining claim against MTA for unfair competition\\n\\nwas also properly dismissed. ʺThe essence of an unfair competition claim under\\n\\nNew York law is that the defendant has misappropriated the labors and\\n\\nexpenditures of anotherʺ with ʺsome element of bad faith.ʺ Saratoga Vichy Spring\\n\\nCo. v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980). MTA was informed prior to\\n\\nexecuting the MTA Agreement that MSEI and its suppliers were licensed to use\\n\\nand reproduce Universalʹs source code. Moreover, Bob Archer, MTAʹs CEO and\\n\\nco‐owner, testified at trial that MTA relied on the language of the EPA in\\n\\nagreeing to supply MSEI with subsequent phases of the THS.\\n\\n As we have held, the EPA in fact authorized MTA as MSEIʹs\\n\\nsupplier to use and reproduce Universalʹs pre‐existing intellectual property for\\n\\n\\n\\n 38\\n\\fthe THS replication project. See supra Part I.B.1. And to the extent MTA adapted\\n\\nthe server source code, such adaptions were authorized under federal law. See\\n\\nsupra Part I.B.2. In these circumstances, no reasonable juror could have found\\n\\nthat MTA acted in bad faith in agreeing to replicate the THS line for MSEIʹs\\n\\ninternal use and for no other purpose. See Jeffrey Milstein, Inc. v. Gregor, Lawlor,\\n\\nRoth, Inc., 58 F.3d 27, 35 (2d Cir. 1995). Accordingly, we affirm the district courtʹs\\n\\ndismissal of this claim.\\n\\n CONCLUSION\\n\\n Accordingly, for the reasons set forth above, the judgment of the\\n\\ndistrict court is AFFIRMED.\\n\\n\\n\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4394782/\", \"author_raw\": \"CHIN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WALKER"},"judge2":{"kind":"string","value":"CHIN"},"judge3":{"kind":"string","value":"KEENAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4617529/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNIVERSAL INSTRUMENTS CORPORATION, Plaintiff-Counter-Defendant-Appellant, v. MICRO SYSTEMS ENGINEERING, INC., Missouri Tooling & Automation, Inc., Defendants-Counter-Claimants-Appellees.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2748‐cv\nUniversal Instruments Corp. v. Micro Sys. Engʹg, Inc.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n August Term 2018\n\n (Argued: September 21, 2018 Decided: May 8, 2019)\n\n Docket No. 17‐2748‐cv\n\n\n UNIVERSAL INSTRUMENTS CORPORATION,\n\n Plaintiff‐Counter‐Defendant‐Appellant,\n\n v.\n\n MICRO SYSTEMS ENGINEERING, INC.,\n MISSOURI TOOLING & AUTOMATION, INC.,\n\n Defendants‐Counter‐Claimants‐Appellees.*\n\n\n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE NORTHERN DISTRICT OF NEW YORK\n\n\nBefore:\n WALKER and CHIN, Circuit Judges, and KEENAN, District Judge.**\n\n\n\n*\n The Clerk of Court is respectfully directed to amend the official caption to\nconform to the above.\n**\n Judge John F. Keenan, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\f Appeal from a judgment entered in the United States District Court\n\nfor the Northern District of New York (Sharpe, J.), dismissing plaintiffʹs claims\n\nfor breach of contract, copyright infringement, misappropriation, and unfair\n\ncompetition arising from its sale of equipment and software for an automated\n\nassembly system. On appeal, plaintiff contends that the district court erred in\n\ngranting defendantsʹ motion for judgment as a matter of law.\n\n AFFIRMED.\n\n\n AMY MASON SAHARIA (Kannon K. Shanmugam, Giselle\n Barcia, Stacie M. Fahsel, on the brief), Williams &\n Connolly LLP, Washington, D.C.; Anthony L.\n Meola, Christopher E. Blank, Victor J.\n Baranowski, Schmeiser, Olsen & Watts LLP,\n Latham, New York, for Plaintiff‐Counter‐\n Defendant‐Appellant Universal Instruments\n Corporation.\n\n DAVID B. TULCHIN (Thomas C. White, Adam R. Brebner,\n Jacob B. Lieberman, on the brief), Sullivan &\n Cromwell LLP, New York, New York, for\n Defendants‐Counter‐Claimants‐Appellee Micro\n Systems Engineering, Inc.\n\n\n Howard J. Kaplan (Marie E. Christiansen, on the brief),\n Kaplan Rice LLP, New York, New York, for\n Defendants‐Counter‐Claimants‐Appellee Missouri\n Tooling & Automation, Inc.\n ___________\n\n\n 2\n\fCHIN, Circuit Judge:\n\n Plaintiff‐counter‐defendant‐appellant Universal Instruments\n\nCorporation (ʺUniversalʺ) developed and sold an automated assembly system to\n\ndefendant‐counter‐plaintiff‐appellee Micro Systems Engineering, Inc. (ʺMSEIʺ) in\n\n2007 pursuant to a purchase agreement. MSEI developed a multi‐phase plan to\n\nbuild a system to automate the handling of medical devices during its quality\n\ntesting process, and Universal won the bid to provide the equipment for the first\n\nphase. MSEI awarded the second and third phases of the project not to\n\nUniversal, but to Universalʹs competitor, defendant‐counter‐plaintiff‐appellee\n\nMissouri Tooling & Automation, Inc. (ʺMTAʺ). In implementing phases two and\n\nthree, MSEI and MTA used intellectual property, including computer source\n\ncode, that Universal had provided for phase one.\n\n Universal brought this action below alleging, inter alia, that MSEI\n\nand MTA had infringed Universalʹs copyright in its source code, breached the\n\nterms of the purchase agreement, and misappropriated Universalʹs trade secrets.\n\nCertain claims were dismissed on defendantsʹ motion for judgment on the\n\npleadings, and, after discovery, the parties proceeded to a jury trial on the\n\n\n\n\n 3\n\fremaining claims. At the close of the evidence, however, the district court\n\ngranted defendantsʹ motion for judgment as a matter of law. Universal appeals.\n\n For the reasons set forth below, we affirm the judgment of the\n\ndistrict court.\n\n BACKGROUND\n\nA. Factual Background\n\n MSEI is a medical device company that designs and manufactures\n\nelectronics for implantable pacemakers and defibrillators. Before selling these\n\ncomponents, MSEI subjects them to a battery of tests to ensure they are working\n\nproperly. MSEI sought to automate its then manual system of moving\n\ncomponents from one test station to another; to that end, MSEI solicited bids for\n\nthe development of a Test Handling System (the ʺTHSʺ). MSEI sought to build\n\nthe THS in phases. The first phase would automate the handling of some\n\nproduct testing stations with further automation to be added in subsequent\n\nphases.\n\n Beginning in 2006, MSEI obtained bids from suppliers for phase one.\n\nOne of the bidders was Universal, a developer of automated assembly platforms.\n\nMSEI awarded phase one to Universal, and the parties memorialized their\n\n\n\n 4\n\fagreement in an Equipment Purchase Agreement (the ʺEPAʺ), executed in June\n\n2007.\n\n The THS ultimately developed by Universal had two software\n\ncomponents: the station software and the server software. The station software\n\nwas embedded on each individual Polaris station and ʺmanage[d] the operation\n\nof conveyors, elevators, stacks and robotic arms.ʺ J. Appʹx at 2606. This software\n\nwas stored on each stationʹs programmable logic controller and could be\n\ndownloaded on site by physically connecting a computer to the station and\n\ndownloading the source code. Id. at 1299‐1300, 1480‐81, 1532‐34. The server\n\nsoftware, on the other hand, was the ʺbrains of the operation,ʺ id. at 988, which\n\nʺsynchronize[d] the activities of the hardware and softwareʺ and was\n\nʺresponsible for coordinating the movement of the module trays,ʺ id. at 2606.\n\nThe source code for the server could not be downloaded in the same way as the\n\nstation software, and under the EPA, Universal was under no obligation to\n\nprovide the server source code to MSEI. Id. at 2344 (providing that ʺsource code\n\nwill not be providedʺ). The parties agreed, however, in their Final Customer\n\nAcceptance letter (the ʺFCAʺ) that Universal would provide MSEI with a copy of\n\n\n\n\n 5\n\fthe server source code at the time of delivery. The THS was delivered in October\n\n2008.\n\n In 2009, MSEI solicited bids for the next phase (ʺTHS2ʺ). The bid\n\ndocuments for THS2 indicated that MSEI had the responsibility to provide the\n\nsoftware for the station and server source code to be used in the project. In April\n\n2010, MSEI awarded the project to MTA, a competitor of Universal, which\n\nsubmitted a lower bid for the project. On April 8, 2010, MSEI and MTA entered\n\ninto an agreement (the ʺMTA Agreementʺ). On April 16, Universal and MTA\n\nwere notified by email that MSEI had ʺawarded the business to MTA for the THS\n\nline two project.ʺ J. Appʹx at 2878. MTA subsequently sought to purchase\n\nPolaris stations from Universal for use in THS2, but on August 4, 2010, Universal\n\ndeclined to sell them to MTA. Thereafter, MSEI downloaded the source code\n\nfrom the individual Polaris stations and the server source code that Universal\n\ngave to MSEI on delivery of phase one; it then gave the code to MTA to use in\n\nthe production of THS2. MSEI and MTA subsequently modified the server\n\nsource code to meet the requirements of THS2.\n\n\n\n\n 6\n\f The EPA contains several provisions relating to the partiesʹ\n\nintellectual property rights. Section 8 is entitled ʺIntellectual Property.ʺ Section\n\n8.2(d) provides that\n\n [i]f [Universal] uses any Pre‐Existing Intellectual Property in connection\n with this Agreement, [Universal] hereby grants MSEI, MSEIʹs\n subcontractors, or suppliers, a non‐exclusive, royalty‐free, worldwide,\n perpetual license, to use, reproduce, display, of the Pre‐Existing\n Intellectual Property for MSEIʹs internal use only.\n\nJ. Appʹx at 2336. ʺPre‐Existing Intellectual Propertyʺ is defined as ʺany trade\n\nsecret, invention, work of authorship, mask work or protectable design that has\n\nalready been conceived or developed by anyone other than MSEI before\n\n[Universal] renders any services under the Agreement.ʺ Id.\n\n Exhibit E to the EPA, entitled ʺEquipment Acceptance Form,ʺ\n\ncontained a blank form for the parties to fill in upon final delivery and\n\nacceptance.\n\n On October 31, 2008, Universal and MSEI signed a negotiated ʺFinal\n\nCustomer Acceptanceʺ letter, which stated, among other things, that Universal\n\n agrees to provide the THS server code as is with the understanding that\n MSEI assumes the risk of invalidating the warranty in the event a change\n made by MSEI to the source code causes damage to any of the THS line\n hardware.\n\nJ. Appʹx at 2361.\n\n\n\n 7\n\fB. Procedural Background\n\n On July 15, 2013, Universal brought this action against MSEI and\n\nMTA in the Northern District of New York, alleging copyright infringement,\n\nmisappropriation of trade secrets, breach of contract, unfair competition, unjust\n\nenrichment, and promissory estoppel. On February 24, 2017, the district court\n\ngranted judgment on the pleadings and dismissed Universalʹs claim for\n\npromissory estoppel and its claims against MSEI for unjust enrichment and\n\nunfair competition. Universal does not challenge those rulings on appeal.\n\n In July and August of 2017, the parties proceeded to trial before a\n\njury on the remaining claims ‐‐ breach of contract, copyright infringement,\n\nmisappropriation of trade secrets, and as to MTA only, unjust enrichment1 and\n\nunfair competition. After the close of Universalʹs case‐in‐chief, the district court\n\nreserved judgment on defendantsʹ motion for judgment as a matter of law. After\n\nsix days of trial and following the close of the evidence on August 7, the district\n\ncourt orally granted defendantsʹ renewed motions for judgment as a matter of\n\nlaw. As the district court explained: ʺThe whole issue here is whether or not\n\n\n\n\n1 Universal has abandoned on appeal its claim against MTA for unjust enrichment.\nIt has thus waived any challenge to the ruling below. See Norton v. Samʹs Club, 145 F.3d\n114, 117 (2d Cir. 1998).\n 8\n\funder the arrangements between the parties, contractual and otherwise, MSEI\n\nhad permission and/or ownership in the property that was transmitted to them.ʺ\n\nSpec. Appʹx at 3. The district found as a matter of law that Universal (1) had a\n\nprotected intellectually property interest in the system source code, (2)\n\ntransferred copies of that property to MSEI, and (3) offered no evidence that\n\nMSEI had exceeded the scope of its license under the EPA by giving MTA the\n\nintellectual property. These findings were dispositive of all claims. The court\n\nreaffirmed its ruling in a nine‐page order issued the following day. It entered\n\njudgment August 9, 2017.\n\n This appeal followed.\n\n DISCUSSION\n\n Universal argues that the district court erred in granting defendantsʹ\n\nrenewed motion for judgment as a matter of law. In short, it contends that the\n\ndistrict courtʹs construction of the EPA is incorrect as a matter of law and that it\n\ndemonstrated the existence of factual questions that should have been resolved\n\nby a jury.\n\n The district court based its grant of judgment as a matter of law on a\n\nnumber of overlapping grounds: it ruled that (1) the license granted by\n\n\n\n 9\n\fUniversal to MSEI pursuant to § 8.2(d) of the EPA authorized MSEI and MTAʹs\n\nuse of the source code; (2) the Final Customer Acceptance letter granted MSEI\n\nownership of the source code; (3) the evidence offered by Universal as to\n\ndamages was insufficient as a matter of law; (4) Universalʹs copyright and\n\nmisappropriation of trade secrets claims were time barred; (5) Universalʹs breach\n\nof contract claim was preempted by the Copyright Act; and (6) Universalʹs\n\ncopyright claim failed because MSEIʹs use of the source code was authorized by\n\n17 U.S.C. § 117(a).\n\n We review de novo both the grant of judgment as a matter of law and\n\nthe district courtʹs construction of the agreements. Phillips v. Audio Active Ltd.,\n\n494 F.3d 378, 384 (2d Cir. 2007); Cash v. Cty. of Erie, 654 F.3d 324, 332‐33 (2d Cir.\n\n2011). In reviewing a grant of judgment as a matter of law, we construe the\n\nevidence in the light most favorable to Universal, drawing all reasonable\n\ninferences in its favor, and without making credibility determinations or\n\nweighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\n\n(2000).\n\n It is undisputed that in completing phases two and three, MSEI and\n\nMTA used source code that Universal had provided for phase one. The principal\n\n\n\n 10\n\fissue presented is whether the EPA permitted them to do so. We hold that\n\ndefendantsʹ conduct did not breach § 8.2(d) of the EPA and was non‐infringing\n\nbecause that provision permitted defendants to reproduce and use the station\n\nand server source code; defendantsʹ adaptation of the server source code was\n\nnon‐infringing because it was authorized by 17 U.S.C. § 117(a); Universalʹs\n\ncontract claim that defendantsʹ modification of the server source code breached\n\nthe EPA is preempted by the Copyright Act; Universalʹs claim of\n\nmisappropriation of trade secrets is time‐barred; and MTA did not unfairly\n\ncompete with Universal because its conduct was not in bad faith. Accordingly,\n\nwe affirm.\n\nI. Copyright Infringement\n\n A. Applicable Law\n\n Universalʹs copyright infringement claim turns on whether\n\ndefendantsʹ conduct fell within the scope of the non‐exclusive license provided in\n\nthe EPA. This is so because a valid license ʺimmunizes the licensee from a charge\n\nof copyright infringement, provided that the licensee uses the copyright as\n\nagreed with the licensor.ʺ Davis v. Blige, 505 F.3d 90, 100 (2d Cir. 2007). Where a\n\nclaim turns on the scope of a license, ʺthe copyright owner bears the burden of\n\n\n\n 11\n\fproving that the defendantʹs [use] was unauthorized.ʺ Tasini v. N.Y. Times Co.,\n\n206 F.3d 161, 171 (2d Cir. 2000) (quoting Bourne v. Walt Disney Co., 68 F.3d 621,\n\n631 (2d Cir. 1995)).\n\n Whether the partiesʹ license agreement encompasses the defendantsʹ\n\nactivities is ʺessentiallyʺ a question of contract interpretation. See Bourne, 68 F.3d\n\nat 631. ʺ[A] written agreement that is complete, clear and unambiguous on its\n\nface must be enforced according to the plain meaning of its terms.ʺ Greenfield v.\n\nPhilles Records, Inc., 98 N.Y.2d 562, 569 (2002) (citing R/S Assocs. v. N.Y. Job Dev.\n\nAuth., 98 N.Y.2d 29, 32 (2002)).2 Where, however, ʺthe language used is\n\nsusceptible to differing interpretations, each of which may be said to be as\n\nreasonable as another, then the interpretation of the contract becomes a question\n\nof fact for the jury and extrinsic evidence of the partiesʹ intent properly is\n\nadmissible.ʺ Bourne, 68 F.3d at 629 (internal quotations marks omitted). The\n\nexistence of an ambiguity, if any, is to ʺbe ascertained from the face of an\n\nagreement without regard to extrinsic evidence.ʺ Reiss v. Fin. Perf. Corp., 97\n\n\n\n\n2\n The EPA does not contain a choice‐of‐law provision, but the parties agree that\nNew York law applies. See Federal Ins. Co. v. Am. Home Assur. Co., 639 F.3d 557, 566 (2d\nCir. 2011) (noting that where, during the course of litigation, ʺthe parties agree that New\nYork law controls, this is sufficient to establish choice of lawʺ).\n 12\n\fN.Y.2d 195, 199 (2001); see also Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co.,\n\n411 F.3d 384, 390 (2d Cir. 2005).\n\n B. Application\n\n We first consider whether the EPA unambiguously permitted MSEI\n\nto transfer the source code to MTA for reproduction and use in subsequent\n\nphases of the THS. We next consider whether MSEI or MTAʹs modification of\n\nUniversalʹs pre‐existing intellectual property was infringing. We hold, for the\n\nreasons discussed below, that the EPA unambiguously permitted MSEI and\n\nMTA to reproduce and use Universalʹs pre‐existing intellectual property in\n\nsubsequent phases of the THS. Defendantsʹ conduct was, therefore, not\n\ninfringing. We further conclude that MSEI and MTAʹs adaptation of the server\n\nsource code for use in additional testing stations was authorized by 17 U.S.C.\n\n§ 117(a) and thus non‐infringing.\n\n 1. Section 8.2(d) of the EPA Unambiguously Permitted MSEI\n and MTA to Reproduce Universalʹs Pre‐Existing Source Code\n\n Universal argues that the EPA plainly prohibited MSEI from\n\nfurnishing MTA with the server and station source code to replicate the THS. It\n\nargues in the alternative that the relevant provisions of the EPA are ambiguous\n\nand that therefore their interpretation could not be resolved as a matter of law.\n\n 13\n\fWe disagree and hold that the EPA unambiguously permitted MSEI and MTA to\n\nreproduce Universalʹs source code for use in subsequent phases of the THS ‐‐\n\nconduct that constituted internal use.\n\n Section 8.2(d) of the EPA provides that ʺ[i]f [Universal] uses any Pre‐\n\nExisting Intellectual Property in connection with this Agreement, [Universal]\n\nhereby grants MSEI, MSEIʹs subcontractors, or suppliers, a non‐exclusive,\n\nroyalty‐free, worldwide, perpetual license to, use, reproduce, display, of the Pre‐\n\nExisting Intellectual property for MSEIʹs internal use only.ʺ J. Appʹx at 2336. It\n\nwas Universalʹs burden to prove that MSEI exceeded the scope of this license.\n\nSee Tasini, 206 F.3d at 171. To do so, it was required to prove that (1) MSEI or its\n\nʺsubcontractorʺ or ʺsupplierʺ (2) did more than ʺuse, reproduce, displayʺ for\n\nMSEIʹs ʺinternal use onlyʺ (3) Universalʹs ʺPre‐Existing Intellectual Property.ʺ\n\n First, MTA is a ʺsupplierʺ of MSEI. The plain meaning of ʺsupplierʺ\n\nunambiguously includes a component manufacturer like MTA. See Supplier,\n\nBlackʹs Law Dictionary (10th ed. 2014) (defining ʺsupplierʺ as ʺ[a] person or\n\nbusiness engaged, directly or indirectly, in making a product available to\n\nconsumersʺ); Supplier, Oxford English Dictionary (2d ed. 1989) (defining\n\nʺsupplierʺ as ʺone who . . . furnishes something neededʺ). Indeed, in its trial brief\n\n\n\n 14\n\fto the district court, Universal twice used the term ʺsupplierʺ in reference to\n\nMTA. J. Appʹx at 679, 685. Universalʹs argument that MTA is not a supplier thus\n\nfails.\n\n Second, MSEI and MTA had license to ʺuse, reproduce, displayʺ the\n\nintellectual property for MSEIʹs ʺinternal use only.ʺ J. Appʹx at 2336. The plain\n\nmeaning of ʺinternal useʺ clearly and unambiguously encompasses MSEIʹs\n\nagreement to permit its supplier to use the software to produce subsequent\n\nphases of the THS. There is no evidence that the source code was used by MSEI\n\nand MTA for anything other than developing and implementing phases two and\n\nthree of MSEIʹs internal test handling system.\n\n Universal contends that ʺinternal useʺ was meant to limit the license\n\nof ʺthird parties ‐‐ subcontractors and suppliers ‐‐ whose products, components,\n\nor services MSEI would be using internally as it tested products on Universalʹs\n\nTHS lineʺ at MSEIʹs premises. Appellantʹs Br. at 25; see also Appellantʹs Reply Br.\n\nat 12 (ʺMSEIʹs external provision of Universalʹs software to MTA to build the lines\n\nviolated Section 8.2(d).ʺ (emphasis in original)). We are unconvinced.\n\n This argument is premised on a physical internal‐external\n\ndichotomy, whereby a supplierʹs ʺuse, reproduc[tion], [or] displayʺ of Universalʹs\n\n\n\n 15\n\fintellectual property on MSEIʹs premises would be permitted, while the same use\n\nor reproduction off site would violate the license. But this cannot be the partiesʹ\n\nintent, because by its terms the license is ʺworldwideʺ in scope and extends to\n\nMSEIʹs suppliers and subcontractors. See EPA § 8.2(d). A license cannot\n\nsimultaneously be worldwide and limited to the physical confines of the\n\nlicenseeʹs premises. The more natural understanding of ʺinternal useʺ in this\n\ncontext is that the pre‐existing intellectual property could be used by or for\n\nMSEIʹs existing business ‐‐ not for resale or for the use or benefit of others. See\n\nInternal, Oxford English Dictionary (3d ed. 2015) (defining ʺinternalʺ as ʺaffairs\n\nand activities within an institution, organization, department, etc.; relating to\n\nsuch affairs or activities; applying or used within an organizationʺ); see also\n\nAnalect LLC v. Fifth Third Bancorp, 380 F. Appʹx 54, 58 (2d Cir. 2010) (summary\n\norder) (finding that contract prohibiting resale and distribution by purchaser did\n\nnot prohibit ʺinternal useʺ); Norwest Corp. v. C.I.R., 110 T.C. 454, 458 (1998)\n\n(ʺ[P]etitioner engaged in numerous projects involving the development of\n\ninternal use software ‐‐ that is, software developed solely for petitionerʹs internal\n\nbusiness and management purposes.ʺ). In the context of computer software, the\n\n\n\n\n 16\n\fon‐premises, off‐premises distinction makes even less sense, given the nature of\n\nsoftware and source code.\n\n This understanding is reinforced by our recent holding that ʺunder\n\nlong‐established principles of agency law, a licensee under a non‐exclusive\n\ncopyright license may use third‐party assistance in exercising its license rights\n\nunless the license expressly provides otherwise.ʺ Great Minds v. Fedex Office &\n\nPrint Servs., Inc., 886 F.3d 91, 94 (2d Cir. 2018). Here, the license expressly\n\nprovided that the rights extended to MSEIʹs suppliers, which surely included\n\nMTA. Hence, MSEI and MTAʹs reproduction of the source code for MSEIʹs\n\ninternal use did not, as a matter of law, exceed the scope of the license. Because\n\nthere is nothing in the record to suggest that the source code was used for\n\nanything other than for MSEI in subsequent phases of its THS, MSEIʹs provision\n\nof the source code to MTA and MTAʹs use of the source code for MSEIʹS benefit\n\ndid not exceed the scope of the license, and thus was non‐infringing.\n\n 2. Modification of the Source Code was Authorized by 17 U.S.C.\n § 117(a)\n\n We turn next to the question whether MSEI and MTA did more than\n\nʺuse, reproduce, [or] displayʺ Universalʹs pre‐existing source code ‐‐ that is,\n\n\n\n\n 17\n\fwhether it modified the source code and, if so, whether the modification\n\ninfringed Universalʹs copyright.\n\n a. MSEI and MTA Modified the Server Source Code\n\n As Universal contends, evidence at trial showed that the server\n\nsource code that MSEI possessed differed from that delivered by Universal in\n\nOctober of 2008. Universalʹs expert witness Richard Hooper was ʺasked to\n\ncompare two sets of server source code.ʺ J. Appʹx at 1719. The first set of source\n\ncode was the THS server source code that Universal had in its files. The second\n\nset was the source code as it existed on MSEIʹs system at the time it was\n\nproduced in the course of litigation. Hooper testified that the server source code\n\nconsists of twenty or thirty individual files ʺthat hold the source code,ʺ which\n\nhave descriptive names like ʺAssemblyStationManager,ʺ ʺLogStationManagerʺ,\n\nʺMessageManager,ʺ ʺRF/ShakerManager,ʺ and ʺFeederShakerManager.ʺ Id. at\n\n1720‐23. He proceeded to show the jury a demonstrative, which included\n\nexcerpted line‐by‐line comparisons of the Universal and MSEI source code. He\n\nnoted that although the codes were nearly ʺidentical,ʺ there were ʺsome changes\n\nthat were made to the MSEI source code.ʺ Id. at 1724. For instance, the\n\nʺLogStationManagerʺ files were ʺ99.4 percent . . . exactly the same.ʺ Id. at 1725.\n\nHooper concluded that ʺMSEI started with the Universal source code and then\n 18\n\fmade some changes to it. They added lines of code to it and they deleted lines of\n\ncode from it.ʺ Id. He also concluded that none of the source code was publicly\n\navailable.\n\n The conclusion that the server source code was modified by MSEI or\n\nMTA after delivery by Universal was reinforced by Christopher Demuth, who\n\nhelped Universal to develop the sever source code and was subsequently hired\n\nby MSEI to make modifications. DeMuth testified that in October 2009, MSEI\n\ncontacted him with a ʺpunch list of some features they wanted added, some\n\nchanges they wanted made to help improve efficiency of the line.ʺ Id. at 1633.\n\nHe made various modifications over the course of several years, in particular\n\nbecause MSEI was ʺworking on building another THS line and they needed\n\nmodifications to the THS server to support . . . communicating with all of the\n\n[new] stations.ʺ Id. at 1635‐38. Thus, the server source code was modified.\n\n Unlike the server source code, Universal does not seriously contend\n\nthat MSEI and MTA modified the station source code. Indeed, there is nothing in\n\nthe voluminous record indicating that the station software was modified.\n\nAlthough the MTA Agreement indicates that MTA would be required to\n\nʺ[m]odify, if necessary, and install SWʺ (SW means software) for each of the\n\n\n\n 19\n\fstations, id. at 2434‐35, it would be speculative to conclude, without something\n\nmore, that the station software was actually modified. We therefore proceed to\n\nconsider only whether MSEIʹs modification of the server source code was\n\nauthorized by 17 U.S.C. § 117(a).\n\n b. The Server Source Code Modifications Were Authorized\n by 17 U.S.C. § 117(a)\n\n It is axiomatic that ʺ[a]n unlicensed use of the copyright is not an\n\ninfringement unless it conflicts with one of the specific exclusive rights conferred\n\nby the copyright statute.ʺ Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.\n\n417, 447 (1984). The Copyright Act grants copyright holders a bundle of\n\nexclusive rights, including the rights to ʺreproduce . . . in copies,ʺ ʺprepare\n\nderivative works,ʺ ʺdistribute copies,ʺ ʺperform,ʺ and ʺdisplayʺ their works. 17\n\nU.S.C. § 106. Source code, the human‐readable literal elements of software, is\n\ncopyrightable. See Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1355‐56 (Fed. Cir.\n\n2014). It is also well established that copyright owners may grant others license\n\nto use their rights. John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394, 410 (2d Cir.\n\n2018). But because copyright licenses prohibit any use not authorized, a licensee\n\ninfringes the ownerʹs copyright if its use exceeds the scope of its license. Gilliam\n\nv. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976) (noting that ʺ[o]ne who obtains\n\n\n 20\n\fpermission to use a copyrightedʺ work ʺmay not exceed the specific purpose for\n\nwhich permission was grantedʺ and concluding that ʺunauthorized editing of the\n\nunderlying work, if proven, would constitute an infringement of the copyright in\n\nthat work similar to any other use of a work that exceeded the license granted by\n\nthe proprietor of the copyrightʺ); see also S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081,\n\n1088 (9th Cir. 1989). Thus, § 8.2(d) of the EPA arguably prohibits, at least\n\nimpliedly, MSEI and its suppliers from modifying Universalʹs pre‐existing\n\nintellectual property.\n\n The Copyright Act, however, provides an affirmative defense that\n\nallows the owner of a copy of a computer program to copy or modify the\n\nprogram for limited purposes without incurring liability for infringement. See 17\n\nU.S.C. § 117(a). Section 117(a) provides, in relevant part:\n\n Notwithstanding the provisions of section 106 [which lists the exclusive\n rights of a copyright holder], it is not an infringement for the owner of a\n copy of a computer program to make or authorize the making of another\n copy or adaptation of that computer program provided:\n\n (1) that such a new copy or adaptation is created as an essential\n step in the utilization of the computer program in conjunction with\n a machine and that it is used in no other manner . . . .\n\nThus, a defendant seeking protection under § 117(a) must demonstrate that the\n\nnew adaptation (1) was made by the ʺowner of a copy of [the] computer\n\n\n 21\n\fprogram,ʺ (2) was ʺcreated as an essential step in the utilization of the computer\n\nprogram in conjunction with a machine,ʺ and (3) was ʺused in no other manner.ʺ\n\n17 U.S.C. § 117(a); see Krause v. Titleserv, Inc., 402 F.3d 119, 122 (2d Cir. 2005). We\n\nconsider each requirement in turn.\n\n 1. MSEI Is the ʺowner of a copy of a computer\n programʺ\n\n We have held that ʺownerʺ as used in § 117(a) does not require\n\nformal title in a program copy. Titleserv, 402 F.3d at 123. Instead, ʺcourts should\n\ninquire into whether the party exercised sufficient incidents of ownership over a\n\ncopy of the program to be sensibly considered the owner of the copy for\n\npurposes of § 117(a).ʺ Id. at 124.\n\n In Titleserv, we found the following facts sufficient to consider\n\ndefendant an owner under § 117(a): defendant paid plaintiff ʺsubstantial\n\nconsideration to develop the programs for its sole benefitʺ; plaintiff ʺcustomized\n\nthe software to serve [defendantʹs] operationsʺ; plaintiff stored copies ʺon a\n\nserver owned by [defendant]ʺ; plaintiff ʺnever reserved the right to repossess the\n\ncopies used by [defendant] and agreed that [defendant] had the right to continue\n\nto possess and use the programs forever, regardless whether its relationship with\n\n\n\n\n 22\n\f[defendant] terminatedʺ; and ʺ[defendant] was similarly free to discard or\n\ndestroy the copies any time it wished.ʺ Id.\n\n For similar reasons, we conclude as a matter of law that MSEI\n\nowned copies of the server software within the meaning of § 117(a). MSEI paid\n\nUniversal over $1 million for the combined hardware and software solution.\n\nUniversal customized the software to serve MSEIʹs precise needs.3 Universal\n\nexpressly ʺprovidedʺ a copy of the server software to MSEI with the sole\n\ncondition that ʺMSEI assume[d] the risk of invalidating the warranty in the event\n\na change made by MSEI to the source code cause[d] damage to any of the THS\n\nline hardware.ʺ J. Appʹx at 2361. Universal granted MSEI and its suppliers\n\nbroad rights to the server source code ‐‐ a perpetual, worldwide license to use,\n\nreproduce, and display the software for MSEIʹs internal use. J. Appʹx at 2336.\n\nAlthough the terms of the EPA expired on December 31, 2012, MSEIʹs rights to\n\n\n\n\n3 Frank Caudrillier, Universalʹs project manager for the THS, testified that ʺthe\nTHS server was developed based on . . . some common tools that we had . . . developed\npreviously, and then customized . . . to respond to the requirements of [MSEI].ʺ J.\nAppʹx at 1511. Kevin Ford, Universalʹs lead software engineer, testified that the server\nsource code was ʺcreated specifically for the THS lineʺ to ʺimplement[] MSEIʹs\nrequirements.ʺ Id. at 1668‐69. A change order in evidence shows that modifications\nwere made to ʺTHS interface, module information table, reseat and correlate,ʺ which\nFord testified were modifications to the server source code. Id. at 1670‐71.\n\n 23\n\fthe software ʺcontinue perpetually and do not terminate upon completion of the\n\nservices.ʺ Id. at 2337. Nothing in the arrangement between MSEI and Universal\n\nindicates that MSEI was in any way restricted from discarding or disposing of\n\nthe software as it wished. For all of these reasons, MSEI was an owner of the\n\nstation and server source code under § 117(a).\n\n Universal contends that MSEI was not an owner because § 8.2(d)\n\nʺseverely limitedʺ MSEIʹs rights to the software. For support, it cites DSC\n\nCommunications Corp. v. Pulse Communications, Inc., 170 F.3d 1354 (Fed. Cir. 1999).\n\nBut as we noted in Titleserv, the defendant in DSC Communications was expressly\n\nprohibited from using the software on hardware other than that provided by\n\nplaintiff. 402 F.3d at 123. MSEI faced no such prohibition. In fact, under the\n\nEPA, MSEI was authorized to use and reproduce the software at will so long as\n\nits uses were ʺinternal.ʺ\n\n Universalʹs argument does find some additional support from the\n\nNinth Circuit, which has held ʺthat a software user is a licensee rather than an\n\nowner of a copy where the copyright owner (1) specified that the user is granted\n\na license; (2) significantly restricts the userʹs ability to transfer the software; and\n\n(3) imposes notable use restrictions.ʺ Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111\n\n\n\n 24\n\f(9th Cir. 2010) (footnote omitted). Although the EPA granted MSEI a license that\n\nwas limited to MSEIʹs internal use, it subsequently transferred a copy of the\n\nserver source code to MSEI with the sole condition that MSEI would be liable for\n\nany damage caused by modifications. J. Appʹx at 2361. Several Universal\n\nemployees, including its executives, as well as MSEI employees, testified that this\n\nprovision resolved the issue of ʺsource code ownership.ʺ Id. at 1048, 1270‐71,\n\n1453‐54, 1545, 2126‐27. In an email to MSEI on October 31, 2008 ‐‐ the date of\n\nfinal delivery ‐‐ Universal stated internally, ʺAs you can see, we are trying to get\n\naway from the Source Code.ʺ Id. at 2632. It then told MSEI, ʺwe are ready to let\n\nyou assume ownership of the line.ʺ Id. at 3009. Thereafter, Universal instructed\n\nits team to ʺget the source code to them todayʺ and to ʺbe sure it is packaged and\n\nready to [sic] (or email it to them or give them the key or whatever).ʺ Id. at 2632.\n\n Thus, for the purposes of applying § 117(a), a reasonably jury could\n\nonly find that MSEI owned a copy of the THS software.\n\n 2. The Adaptation was ʺcreated as an essential step\n in the utilization of the computer program in\n conjunction with a machineʺ\n\n To receive the protection of § 117(a), MSEI must also demonstrate\n\nthat its modification of the software was ʺan essential step in the utilization of the\n\ncomputer program[s] in conjunction with a machine.ʺ In Aymes v. Bonelli, the\n 25\n\fdefendant retail store used programs to track inventory and sales, and generally\n\norganize its records. 47 F.3d 23, 24 (2d Cir. 1995). The defendants modified the\n\nprograms to keep them up‐to‐date and to ensure their compatibility with\n\nsuccessive generations of computer systems. Id. at 26. We held that the\n\nmodifications were essential to the defendantsʹ utilization of the programs within\n\nthe meaning of § 117(a)(1) because the ʺadaptations were essential to allow use of\n\nthe program[s] for the very purpose for which [they were] purchased.ʺ Id. at 27.\n\n In Titleserv, the defendant used the programs at issue ʺto track and\n\nreport on the status of client requests and other aspects of its operations.ʺ 402\n\nF.3d at 120. The defendant modified the programs by correcting bugs,\n\nʺperforming routine tasks necessary to keep the programs up‐to‐date and to\n\nmaintain their usefulness to [defendant],ʺ incorporating the programs into a new\n\nsystem implemented by defendant, and adding new capabilities to help ʺmake\n\nthe programs more responsive to the needs of [defendantʹs] business.ʺ Id. at 125.\n\nWe reiterated, as we originally held in Aymes, that ʺadaptation of the copy of\n\nthe[] software so that it would continue to function on the defendantsʹ new\n\ncomputer systemʺ constituted an ʺessential stepʺ within the meaning of § 117(a).\n\nId. at 126. We further held that the ʺaddition of new features,ʺ which ʺwere not\n\n\n\n 26\n\fstrictly necessary to keep the programs functioning, but were designed to\n\nimprove their functionality in serving the business for which they were created,ʺ\n\nwere also ʺessential.ʺ Id.; see also Final Report of the National Commission on New\n\nTechnological Uses of Copyrighted Works 13 (1978) [hereinafter ʺCONTU Reportʺ]\n\n(ʺ[A] right to make those changes necessary to enable the use for which it was\n\nboth sold and purchased should be provided. The conversion of a program from\n\none higher‐level language to another to facilitate use would fall within this right,\n\nas would the right to add features to the program that were not present at the\n\ntime of rightful acquisition.ʺ). In doing so, however, we noted an important\n\nlimitation: an ʺessentialʺ improvement ought not to ʺharm the interests of the\n\ncopyright proprietor.ʺ Id. at 129 (citing CONTU Report at 13).\n\n As Universalʹs witnesses testified, the copy of the server software\n\ngiven to MSEI was ʺpretty much identicalʺ to the copy owned by MSEI. J. Appʹx\n\nat 1724. The modifications that were made were undertaken ʺto help improve\n\nefficiency of the line,ʺ id. at 1633, and to enable the server software to ʺsupport\n\n. . . communicating with all of the [new] stations.ʺ Id. at 1635‐38. The\n\nmodifications were, therefore, ʺdesigned to improve [the server source codeʹs]\n\n\n\n\n 27\n\ffunctionality in serving the business for which [it was] created.ʺ Titleserv, 402\n\nF.3d at 126.\n\n Universal claims that MSEIʹs provision of the source code to MTA ‐‐\n\nʺa competitorʺ of MSEI ‐‐ is exactly the sort of harm we indicated in Titleserv\n\nmight present ʺ[a] different scenario.ʺ Id. We disagree that this is the sort of\n\nharm envisioned by § 117(a). By its terms, § 117(a) permits the owner of a copy\n\nʺto make or authorize the making . . . of another adaptation.ʺ 17 U.S.C. § 117(a)\n\n(emphasis added). And, as we held above, Universal expressly authorized MSEI\n\nand its suppliers and subcontractors to use and reproduce the software at issue.\n\nTrue, alterations that ʺsomehow interfere[] with [a copyright ownerʹs] access to,\n\nor ability to exploit, the copyrighted workʺ might render modifications non‐\n\nessential under § 117(a), but where the copyright owner ʺenjoy[s] no less\n\nopportunity after . . . changes, than before, to use, market, or otherwise reap the\n\nfruits of the copyrighted programs that he created,ʺ the changes may properly be\n\nconsidered essential under § 117(a). Titleserv, 402 F.3d at 129.\n\n MSEIʹs use did not inhibit Universalʹs ability to market or sell its\n\nserver software to others, nor did it divulge sensitive Universal information or\n\nenrich MSEI or MTA at the expense of Universal. MSEI made and authorized the\n\n\n\n 28\n\fmaking of minor modifications, narrowly tailored to adapting the server\n\nsoftware for the use for which it was designed ‐‐ orchestration of the test handing\n\nstations to ensure the quality of MSEIʹs implantable medical devices.\n\n Accordingly, we hold that a reasonable jury could only find that the\n\nmodifications made by MSEI were essential as they allowed the existing server\n\nsoftware to interact with additional systems in the manner intended when the\n\nsource code was developed for MSEI.\n\n 3. The Adaptation was ʺused in no other mannerʺ\n\n Finally, to warrant the protection of § 117(a), MSEI must show that\n\nthe server software was ʺused in no other manner,ʺ that is, it was used only to\n\nmake an adaptation as an essential step in utilizing the software in conjunction\n\nwith the test handling system. Universal argues that MSEIʹs modification of the\n\nserver software to operate with new machines, rather than the existing machines\n\ncreated by Universal, defeats MSEIʹs claim to protection from § 117(a).\n\n ʺWhether a questioned use is a use in another manner . . . depend[s]\n\non the type of use envisioned in the creation of the program.ʺ Titleserv, 402 F.3d\n\nat 129. The server software was designed to be the ʺbrains of the operation,ʺ J.\n\nAppʹx at 988, which ʺsynchronize[d] the activities of the hardware and softwareʺ\n\nand was ʺresponsible for coordinating the movement of the module trays,ʺ id. at\n 29\n\f2606. These are precisely the purposes for which MSEI and MTA made\n\nmodifications, as indicated in the Statement of Work. See id. at 2366 (ʺUpdate\n\nTHS Server software to add functionality for the new stations.ʺ); see also id. at\n\n2367 (ʺScope of the project . . . is first to replicate the existing system . . . , and\n\nthen expand this configuration to add the capability to add three . . . electrical\n\ntesters . . . , one RF testing stations and one Shaker test station.ʺ). There is\n\nnothing in the record to suggest that the server source code was used for any\n\npurpose other than to adapt the system to handle new testing stations for MSEIʹs\n\ninternal use. See Titleserv, 402 F.3d at 130 (ʺWhat is important is that the\n\ntransaction for which the programs are used is the type of transaction for which\n\nthe programs were developed.ʺ). Thus, MSEI ʺsimply increased the versatility of\n\nthe programs by allowing themʺ to interoperate with new test handling stations,\n\nwhich ʺconstitutes use in the same manner, with the benefit of an adaptation\n\nincreasing versatility.ʺ Id.\n\n Moreover, the server software customized by Universal for MSEI\n\nwas part of the first phase of MSEIʹs multi‐phased test handling system project.\n\nUniversal was aware that the project had additional phases when it signed the\n\nEPA, and at that time it had no guarantees that it would be chosen to supply the\n\n\n\n 30\n\flater phases. The addition of new systems was, therefore, a use contemplated at\n\nthe outset.4\n\n For the foregoing reasons, we conclude as a matter of law that it was\n\nnot an infringement for MSEI as the ʺowner of a copy of a computer program,ʺ or\n\nMTA as MSEIʹs supplier, to ʺmake or have made [an] adaptation,ʺ where ʺsuch\n\nadaptation was created as an essential step in the utilization of the computer\n\nprogram in conjunction with a machine and . . . in no other manner.ʺ 17 U.S.C.\n\n§ 117(a).\n\nII. Breach of Contract\n\n MSEI and MTAʹs use and reproduction of Universalʹs pre‐existing\n\nintellectual property for use in subsequent phases of the THS was non‐infringing\n\nbecause defendants were expressly licensed to do so under § 8.2(d) of the EPA.\n\nSee supra Part I.B.1. It necessarily follows that MSEIʹs use and reproduction of the\n\nsource code was not in breach of the EPA. See Davis, 505 F.3d at 100; Bourne, 68\n\nF.3d at 631. Universalʹs breach of contract claim is thus reduced to its assertion\n\nthat MSEI breached the EPA by modifying the server source code. We do not\n\n\n\n4 We note also that Universal was aware that the project to ʺreplicate the existing\nsystemʺ was awarded to MTA in April 2010, J. Appʹx at 1014, 2878, and yet it did not\nobject to MTAʹs provision of subsequent phases of the system, including modifying the\nserver source code, until July 2013 when this action was filed.\n 31\n\freach the merits of this question, however, because what remains of Universalʹs\n\nbreach of contract claim is preempted by the Copyright Act.\n\n The Copyright Act exclusively governs a claim when (1) the\n\nparticular work to which the claim is being applied falls within the type of works\n\nprotected by the Copyright Act under 17 U.S.C. §§ 102 and 103, and (2) the claim\n\nseeks to vindicate legal or equitable rights that are equivalent to one of the\n\nbundle of exclusive rights already protected by copyright law under 17 U.S.C.\n\n§ 106. Briarpatch L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004). ʺA\n\nstate law right is equivalent to one of the exclusive rights of copyright if it may\n\nbe abridged by an act which, in and of itself, would infringe one of the exclusive\n\nrights.ʺ Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 430\n\n(2d Cir. 2012) (internal quotation marks omitted). ʺʹBut if an extra element is\n\nrequired instead of or in addition to the acts of reproduction, performance,\n\ndistribution or display, in order to constitute a state‐created cause of action,ʹ\n\nthere is no preemption.ʺ Id. (quoting Comput. Assocs. Intʹl, Inc. v. Altai, Inc., 982\n\nF.2d 693, 716 (2d Cir. 1992)). Preemption, therefore, turns on ʺwhat [the] plaintiff\n\nseeks to protect, the theories in which the matter is thought to be protected and\n\n\n\n\n 32\n\fthe rights sought to be enforced.ʺ Comput. Assocs., 982 F.2d at 716 (internal\n\nquotation marks omitted).\n\n As we have recognized, ʺpreemption cannot be avoided simply by\n\nlabeling a claim ʹbreach of contract.ʹʺ Forest Park, 683 F.3d at 432; see also 5\n\nNimmer on Copyright § 19D.03[C][2][b] (suggesting that a contract that ʺdoes\n\nnot purport to give [the plaintiff] any protection beyond that provided . . . by\n\ncopyright law itselfʺ would be preempted). In Forest Park, we held the contract at\n\nissue not to be preempted because it included an ʺextra elementʺ of a promise to\n\npay, and plaintiff sought contract damages when defendant used plaintiffʹs\n\ncopyrighted work without paying for the privilege. Forest Park, 683 F.3d at 428.\n\nHere, by contrast, there is no dispute over payment. Universal does not argue\n\nthat defendants violated the EPA by failing to pay for use of the intellectual\n\nproperty.\n\n What remains of Universal breach of contract claim is that MSEIʹs\n\nmodification of the source code exceeded the scope of the license contained in the\n\nEPA. This claim does not include an ʺextra elementʺ that is different from those\n\nof its copyright infringement claim. The prohibition against modification is not\n\nexplicit in the EPA; it is, instead, arguably implied because copyright licenses are\n\n\n\n 33\n\fassumed to permit those uses not expressly authorized. Gilliam, 538 F.2d at 20.\n\nUniversal therefore necessarily seeks to vindicate its exclusive rights under 17\n\nU.S.C. § 106. That Universal and MSEI are in contractual privity does nothing to\n\nchange the fact that vindication of an exclusive right under the Copyright Act,\n\nread into a license by negative implication, is preempted by the Copyright Act.\n\nSee 3 Nimmer § 10.15[A] (noting that ʺuse by the grantee without authority from\n\nthe grantorʺ leads to the legal consequence ʺthat the granteeʹs conduct may\n\nconstitute copyright infringementʺ). In Kamakazi Music Corp. v. Robbins Music\n\nCorp., we held that a licensorʹs suit against a licensee whose license had expired\n\nwas for copyright infringement, not breach of contract. 684 F.2d 228, 230 (2d Cir.\n\n1982). This rationale extends equally to a licensor whose use arguably exceeds\n\nthe scope, rather than the duration, of a license. See Marshall v. New Kids On The\n\nBlock Pʹship, 780 F. Supp. 1005, 1008‐09 (S.D.N.Y. 1991). Because this portion of\n\nUniversalʹs breach of contract claim seeks solely to vindicate an exclusive right\n\nunder the Copyright Act, it is preempted. It thus fails as a matter of law because,\n\nas discussed supra Part I.B.2, the affirmative defense of § 117(a) bars recovery to\n\nUniversal on the theory that MSEI or MTAʹs modifications to the server source\n\ncode infringed Universalʹs copyright.\n\n\n\n 34\n\fIII. Misappropriation of Trade Secrets\n\n A plaintiff claiming misappropriation of a trade secret must prove\n\nthat (1) ʺit possessed a trade secret,ʺ and (2) the trade secret was used by\n\ndefendant ʺin breach of an agreement, confidence, or duty, or as a result of\n\ndiscovery by improper means.ʺ Integrated Cash Mgmt. Servs., Inc. v. Digital\n\nTransactions, Inc., 920 F.2d 171, 173 (2d Cir. 1990). We do not reach the merits of\n\nthis claim, however, because it is time‐barred by the applicable statute of\n\nlimitations.\n\n In New York, a cause of action for the misappropriation of trade\n\nsecrets is governed by a three‐year statute of limitations, while claims for\n\nequitable relief are subject to a six‐year statute of limitations. Compare N.Y.\n\nC.P.L.R. § 214(4) (providing three‐year‐statute of limitations for claims of\n\nmisappropriation of trade secrets), with id. § 213(1) (providing six‐year statute of\n\nlimitations for claims seeking equitable relief). Universal argues that its claim for\n\ninjunctive relief is governed by the more generous six‐year limitations period.\n\n ʺ[C]ourts determine the applicable limitations period . . . by\n\nanalyzing the substantive remedy that the plaintiff seeks.ʺ ABS Entmʹt, Inc. v.\n\nCBS Corp., 163 F. Supp. 3d 103, 108 (S.D.N.Y. 2016) (applying New York law).\n\n\n\n 35\n\fʺWhere the remedy sought is purely monetary in nature, courts construe the suit\n\nas alleging ʹinjury to propertyʹ within the meaning of CPLR 214(4), which has a\n\nthree‐year limitations period.ʺ IDT Corp. v. Morgan Stanley Dean Witter & Co., 12\n\nN.Y.3d 132, 139 (2009). In IDT, the equitable relief was incidental to the damages\n\nsought, so ʺlooking to the reality, rather than the form, of [the] action,ʺ the New\n\nYork State Court of Appeals concluded that IDT principally sought a monetary\n\nremedy and, thus, held that the three‐year statute of limitations applied. Id. at\n\n139‐40. Similarly, in this case, the main remedy that Universal seeks is monetary\n\ndamages. Universalʹs Third Amended Complaint requested that it be awarded\n\nprofits and a royalty, not just an injunction, in connection with its\n\nmisappropriation of trade secrets claim, as well as double damages, punitive\n\ndamages, and attorneysʹ fees. Therefore, because the reality of the cause of action\n\nis that it is one for damages, not injunctive relief, the three‐year statute of\n\nlimitations applies.\n\n Universal argues that this statute of limitations should be tolled or\n\nextended on a continuing tort theory. ʺA continuing tort theory may apply . . .\n\nwhere the plaintiff alleges that a defendant has kept a secret confidential but\n\ncontinued to use it for commercial advantage.ʺ Andrew Greenberg, Inc. v. Svane,\n\n\n\n 36\n\fInc., 830 N.Y.S.2d 358, 362 (App. Div. 2007). ʺWhere, however, the ʹplaintiff had\n\nknowledge of the defendantʹs misappropriation and use of its trade secret, the\n\ncontinuing tort doctrine does not apply.ʹʺ PaySys Intʹl, Inc. v. Atos Se, No. 14‐\n\n10105, 2016 WL 7116132, at * 9 (S.D.N.Y. Dec. 5, 2016) (quoting VoiceOne\n\nCommcʹns, LLC v. Google Inc., No. 12‐9433, 2014 WL 10936546, at *10 (S.D.N.Y.\n\nMar. 31, 2014)) (citing cases). Here, Universal had knowledge of MSEI and\n\nMTAʹs alleged misappropriation and use of its trade secret and, accordingly, the\n\ncontinuing tort theory does not apply.\n\n The evidence shows that Universal was put on notice of its\n\nmisappropriation of trade secrets claim more than three years prior to filing its\n\ncomplaint on July 15, 2013. Accrual of the statute of limitations begins when ʺa\n\nreasonably diligent person in plaintiffʹs position would have been put on inquiry\n\nas to theʺ claim. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992). Universalʹs\n\nexecutive chairman, Jean‐Luc Pelissier, testified that in 2009 he understood that\n\nthere were other companies besides Universal bidding on THS2. He also\n\ntestified that he understood that when MSEI said it wanted to replicate the THS\n\nline, that included the software. On April 16, 2010, MSEI sent an email to\n\nUniversal informing Universal that MSEI awarded the business for the THS\n\n\n\n 37\n\freplication project to MTA. Based on this evidence, a reasonably diligent person\n\nwould have been put on notice of the misappropriation of trade secrets claim ‐‐\n\nthat is, that MSEI gave Universalʹs software and source code to MTA so MTA\n\ncould replicate and modify it to build the second THS line. Yet Universal did not\n\nassert the claim until more than three years later, in July of 2013. Thus,\n\nUniversalʹs claim is time‐barred.\n\nIV. Unfair Competition\n\n Universalʹs remaining claim against MTA for unfair competition\n\nwas also properly dismissed. ʺThe essence of an unfair competition claim under\n\nNew York law is that the defendant has misappropriated the labors and\n\nexpenditures of anotherʺ with ʺsome element of bad faith.ʺ Saratoga Vichy Spring\n\nCo. v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980). MTA was informed prior to\n\nexecuting the MTA Agreement that MSEI and its suppliers were licensed to use\n\nand reproduce Universalʹs source code. Moreover, Bob Archer, MTAʹs CEO and\n\nco‐owner, testified at trial that MTA relied on the language of the EPA in\n\nagreeing to supply MSEI with subsequent phases of the THS.\n\n As we have held, the EPA in fact authorized MTA as MSEIʹs\n\nsupplier to use and reproduce Universalʹs pre‐existing intellectual property for\n\n\n\n 38\n\fthe THS replication project. See supra Part I.B.1. And to the extent MTA adapted\n\nthe server source code, such adaptions were authorized under federal law. See\n\nsupra Part I.B.2. In these circumstances, no reasonable juror could have found\n\nthat MTA acted in bad faith in agreeing to replicate the THS line for MSEIʹs\n\ninternal use and for no other purpose. See Jeffrey Milstein, Inc. v. Gregor, Lawlor,\n\nRoth, Inc., 58 F.3d 27, 35 (2d Cir. 1995). Accordingly, we affirm the district courtʹs\n\ndismissal of this claim.\n\n CONCLUSION\n\n Accordingly, for the reasons set forth above, the judgment of the\n\ndistrict court is AFFIRMED.\n\n\n\n\n 39\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNIVERSAL INSTRUMENTS CORPORATION, Plaintiff-Counter-Defendant-Appellant, v. MICRO SYSTEMS ENGINEERING, INC., Missouri Tooling & Automation, Inc., Defendants-Counter-Claimants-Appellees.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2748‐cv\\nUniversal Instruments Corp. v. Micro Sys. Engʹg, Inc.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Argued: September 21, 2018 Decided: May 8, 2019)\\n\\n Docket No. 17‐2748‐cv\\n\\n\\n UNIVERSAL INSTRUMENTS CORPORATION,\\n\\n Plaintiff‐Counter‐Defendant‐Appellant,\\n\\n v.\\n\\n MICRO SYSTEMS ENGINEERING, INC.,\\n MISSOURI TOOLING & AUTOMATION, INC.,\\n\\n Defendants‐Counter‐Claimants‐Appellees.*\\n\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE NORTHERN DISTRICT OF NEW YORK\\n\\n\\nBefore:\\n WALKER and CHIN, Circuit Judges, and KEENAN, District Judge.**\\n\\n\\n\\n*\\n The Clerk of Court is respectfully directed to amend the official caption to\\nconform to the above.\\n**\\n Judge John F. Keenan, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\f Appeal from a judgment entered in the United States District Court\\n\\nfor the Northern District of New York (Sharpe, J.), dismissing plaintiffʹs claims\\n\\nfor breach of contract, copyright infringement, misappropriation, and unfair\\n\\ncompetition arising from its sale of equipment and software for an automated\\n\\nassembly system. On appeal, plaintiff contends that the district court erred in\\n\\ngranting defendantsʹ motion for judgment as a matter of law.\\n\\n AFFIRMED.\\n\\n\\n AMY MASON SAHARIA (Kannon K. Shanmugam, Giselle\\n Barcia, Stacie M. Fahsel, on the brief), Williams &\\n Connolly LLP, Washington, D.C.; Anthony L.\\n Meola, Christopher E. Blank, Victor J.\\n Baranowski, Schmeiser, Olsen & Watts LLP,\\n Latham, New York, for Plaintiff‐Counter‐\\n Defendant‐Appellant Universal Instruments\\n Corporation.\\n\\n DAVID B. TULCHIN (Thomas C. White, Adam R. Brebner,\\n Jacob B. Lieberman, on the brief), Sullivan &\\n Cromwell LLP, New York, New York, for\\n Defendants‐Counter‐Claimants‐Appellee Micro\\n Systems Engineering, Inc.\\n\\n\\n Howard J. Kaplan (Marie E. Christiansen, on the brief),\\n Kaplan Rice LLP, New York, New York, for\\n Defendants‐Counter‐Claimants‐Appellee Missouri\\n Tooling & Automation, Inc.\\n ___________\\n\\n\\n 2\\n\\fCHIN, Circuit Judge:\\n\\n Plaintiff‐counter‐defendant‐appellant Universal Instruments\\n\\nCorporation (ʺUniversalʺ) developed and sold an automated assembly system to\\n\\ndefendant‐counter‐plaintiff‐appellee Micro Systems Engineering, Inc. (ʺMSEIʺ) in\\n\\n2007 pursuant to a purchase agreement. MSEI developed a multi‐phase plan to\\n\\nbuild a system to automate the handling of medical devices during its quality\\n\\ntesting process, and Universal won the bid to provide the equipment for the first\\n\\nphase. MSEI awarded the second and third phases of the project not to\\n\\nUniversal, but to Universalʹs competitor, defendant‐counter‐plaintiff‐appellee\\n\\nMissouri Tooling & Automation, Inc. (ʺMTAʺ). In implementing phases two and\\n\\nthree, MSEI and MTA used intellectual property, including computer source\\n\\ncode, that Universal had provided for phase one.\\n\\n Universal brought this action below alleging, inter alia, that MSEI\\n\\nand MTA had infringed Universalʹs copyright in its source code, breached the\\n\\nterms of the purchase agreement, and misappropriated Universalʹs trade secrets.\\n\\nCertain claims were dismissed on defendantsʹ motion for judgment on the\\n\\npleadings, and, after discovery, the parties proceeded to a jury trial on the\\n\\n\\n\\n\\n 3\\n\\fremaining claims. At the close of the evidence, however, the district court\\n\\ngranted defendantsʹ motion for judgment as a matter of law. Universal appeals.\\n\\n For the reasons set forth below, we affirm the judgment of the\\n\\ndistrict court.\\n\\n BACKGROUND\\n\\nA. Factual Background\\n\\n MSEI is a medical device company that designs and manufactures\\n\\nelectronics for implantable pacemakers and defibrillators. Before selling these\\n\\ncomponents, MSEI subjects them to a battery of tests to ensure they are working\\n\\nproperly. MSEI sought to automate its then manual system of moving\\n\\ncomponents from one test station to another; to that end, MSEI solicited bids for\\n\\nthe development of a Test Handling System (the ʺTHSʺ). MSEI sought to build\\n\\nthe THS in phases. The first phase would automate the handling of some\\n\\nproduct testing stations with further automation to be added in subsequent\\n\\nphases.\\n\\n Beginning in 2006, MSEI obtained bids from suppliers for phase one.\\n\\nOne of the bidders was Universal, a developer of automated assembly platforms.\\n\\nMSEI awarded phase one to Universal, and the parties memorialized their\\n\\n\\n\\n 4\\n\\fagreement in an Equipment Purchase Agreement (the ʺEPAʺ), executed in June\\n\\n2007.\\n\\n The THS ultimately developed by Universal had two software\\n\\ncomponents: the station software and the server software. The station software\\n\\nwas embedded on each individual Polaris station and ʺmanage[d] the operation\\n\\nof conveyors, elevators, stacks and robotic arms.ʺ J. Appʹx at 2606. This software\\n\\nwas stored on each stationʹs programmable logic controller and could be\\n\\ndownloaded on site by physically connecting a computer to the station and\\n\\ndownloading the source code. Id. at 1299‐1300, 1480‐81, 1532‐34. The server\\n\\nsoftware, on the other hand, was the ʺbrains of the operation,ʺ id. at 988, which\\n\\nʺsynchronize[d] the activities of the hardware and softwareʺ and was\\n\\nʺresponsible for coordinating the movement of the module trays,ʺ id. at 2606.\\n\\nThe source code for the server could not be downloaded in the same way as the\\n\\nstation software, and under the EPA, Universal was under no obligation to\\n\\nprovide the server source code to MSEI. Id. at 2344 (providing that ʺsource code\\n\\nwill not be providedʺ). The parties agreed, however, in their Final Customer\\n\\nAcceptance letter (the ʺFCAʺ) that Universal would provide MSEI with a copy of\\n\\n\\n\\n\\n 5\\n\\fthe server source code at the time of delivery. The THS was delivered in October\\n\\n2008.\\n\\n In 2009, MSEI solicited bids for the next phase (ʺTHS2ʺ). The bid\\n\\ndocuments for THS2 indicated that MSEI had the responsibility to provide the\\n\\nsoftware for the station and server source code to be used in the project. In April\\n\\n2010, MSEI awarded the project to MTA, a competitor of Universal, which\\n\\nsubmitted a lower bid for the project. On April 8, 2010, MSEI and MTA entered\\n\\ninto an agreement (the ʺMTA Agreementʺ). On April 16, Universal and MTA\\n\\nwere notified by email that MSEI had ʺawarded the business to MTA for the THS\\n\\nline two project.ʺ J. Appʹx at 2878. MTA subsequently sought to purchase\\n\\nPolaris stations from Universal for use in THS2, but on August 4, 2010, Universal\\n\\ndeclined to sell them to MTA. Thereafter, MSEI downloaded the source code\\n\\nfrom the individual Polaris stations and the server source code that Universal\\n\\ngave to MSEI on delivery of phase one; it then gave the code to MTA to use in\\n\\nthe production of THS2. MSEI and MTA subsequently modified the server\\n\\nsource code to meet the requirements of THS2.\\n\\n\\n\\n\\n 6\\n\\f The EPA contains several provisions relating to the partiesʹ\\n\\nintellectual property rights. Section 8 is entitled ʺIntellectual Property.ʺ Section\\n\\n8.2(d) provides that\\n\\n [i]f [Universal] uses any Pre‐Existing Intellectual Property in connection\\n with this Agreement, [Universal] hereby grants MSEI, MSEIʹs\\n subcontractors, or suppliers, a non‐exclusive, royalty‐free, worldwide,\\n perpetual license, to use, reproduce, display, of the Pre‐Existing\\n Intellectual Property for MSEIʹs internal use only.\\n\\nJ. Appʹx at 2336. ʺPre‐Existing Intellectual Propertyʺ is defined as ʺany trade\\n\\nsecret, invention, work of authorship, mask work or protectable design that has\\n\\nalready been conceived or developed by anyone other than MSEI before\\n\\n[Universal] renders any services under the Agreement.ʺ Id.\\n\\n Exhibit E to the EPA, entitled ʺEquipment Acceptance Form,ʺ\\n\\ncontained a blank form for the parties to fill in upon final delivery and\\n\\nacceptance.\\n\\n On October 31, 2008, Universal and MSEI signed a negotiated ʺFinal\\n\\nCustomer Acceptanceʺ letter, which stated, among other things, that Universal\\n\\n agrees to provide the THS server code as is with the understanding that\\n MSEI assumes the risk of invalidating the warranty in the event a change\\n made by MSEI to the source code causes damage to any of the THS line\\n hardware.\\n\\nJ. Appʹx at 2361.\\n\\n\\n\\n 7\\n\\fB. Procedural Background\\n\\n On July 15, 2013, Universal brought this action against MSEI and\\n\\nMTA in the Northern District of New York, alleging copyright infringement,\\n\\nmisappropriation of trade secrets, breach of contract, unfair competition, unjust\\n\\nenrichment, and promissory estoppel. On February 24, 2017, the district court\\n\\ngranted judgment on the pleadings and dismissed Universalʹs claim for\\n\\npromissory estoppel and its claims against MSEI for unjust enrichment and\\n\\nunfair competition. Universal does not challenge those rulings on appeal.\\n\\n In July and August of 2017, the parties proceeded to trial before a\\n\\njury on the remaining claims ‐‐ breach of contract, copyright infringement,\\n\\nmisappropriation of trade secrets, and as to MTA only, unjust enrichment1 and\\n\\nunfair competition. After the close of Universalʹs case‐in‐chief, the district court\\n\\nreserved judgment on defendantsʹ motion for judgment as a matter of law. After\\n\\nsix days of trial and following the close of the evidence on August 7, the district\\n\\ncourt orally granted defendantsʹ renewed motions for judgment as a matter of\\n\\nlaw. As the district court explained: ʺThe whole issue here is whether or not\\n\\n\\n\\n\\n1 Universal has abandoned on appeal its claim against MTA for unjust enrichment.\\nIt has thus waived any challenge to the ruling below. See Norton v. Samʹs Club, 145 F.3d\\n114, 117 (2d Cir. 1998).\\n 8\\n\\funder the arrangements between the parties, contractual and otherwise, MSEI\\n\\nhad permission and/or ownership in the property that was transmitted to them.ʺ\\n\\nSpec. Appʹx at 3. The district found as a matter of law that Universal (1) had a\\n\\nprotected intellectually property interest in the system source code, (2)\\n\\ntransferred copies of that property to MSEI, and (3) offered no evidence that\\n\\nMSEI had exceeded the scope of its license under the EPA by giving MTA the\\n\\nintellectual property. These findings were dispositive of all claims. The court\\n\\nreaffirmed its ruling in a nine‐page order issued the following day. It entered\\n\\njudgment August 9, 2017.\\n\\n This appeal followed.\\n\\n DISCUSSION\\n\\n Universal argues that the district court erred in granting defendantsʹ\\n\\nrenewed motion for judgment as a matter of law. In short, it contends that the\\n\\ndistrict courtʹs construction of the EPA is incorrect as a matter of law and that it\\n\\ndemonstrated the existence of factual questions that should have been resolved\\n\\nby a jury.\\n\\n The district court based its grant of judgment as a matter of law on a\\n\\nnumber of overlapping grounds: it ruled that (1) the license granted by\\n\\n\\n\\n 9\\n\\fUniversal to MSEI pursuant to § 8.2(d) of the EPA authorized MSEI and MTAʹs\\n\\nuse of the source code; (2) the Final Customer Acceptance letter granted MSEI\\n\\nownership of the source code; (3) the evidence offered by Universal as to\\n\\ndamages was insufficient as a matter of law; (4) Universalʹs copyright and\\n\\nmisappropriation of trade secrets claims were time barred; (5) Universalʹs breach\\n\\nof contract claim was preempted by the Copyright Act; and (6) Universalʹs\\n\\ncopyright claim failed because MSEIʹs use of the source code was authorized by\\n\\n17 U.S.C. § 117(a).\\n\\n We review de novo both the grant of judgment as a matter of law and\\n\\nthe district courtʹs construction of the agreements. Phillips v. Audio Active Ltd.,\\n\\n494 F.3d 378, 384 (2d Cir. 2007); Cash v. Cty. of Erie, 654 F.3d 324, 332‐33 (2d Cir.\\n\\n2011). In reviewing a grant of judgment as a matter of law, we construe the\\n\\nevidence in the light most favorable to Universal, drawing all reasonable\\n\\ninferences in its favor, and without making credibility determinations or\\n\\nweighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\\n\\n(2000).\\n\\n It is undisputed that in completing phases two and three, MSEI and\\n\\nMTA used source code that Universal had provided for phase one. The principal\\n\\n\\n\\n 10\\n\\fissue presented is whether the EPA permitted them to do so. We hold that\\n\\ndefendantsʹ conduct did not breach § 8.2(d) of the EPA and was non‐infringing\\n\\nbecause that provision permitted defendants to reproduce and use the station\\n\\nand server source code; defendantsʹ adaptation of the server source code was\\n\\nnon‐infringing because it was authorized by 17 U.S.C. § 117(a); Universalʹs\\n\\ncontract claim that defendantsʹ modification of the server source code breached\\n\\nthe EPA is preempted by the Copyright Act; Universalʹs claim of\\n\\nmisappropriation of trade secrets is time‐barred; and MTA did not unfairly\\n\\ncompete with Universal because its conduct was not in bad faith. Accordingly,\\n\\nwe affirm.\\n\\nI. Copyright Infringement\\n\\n A. Applicable Law\\n\\n Universalʹs copyright infringement claim turns on whether\\n\\ndefendantsʹ conduct fell within the scope of the non‐exclusive license provided in\\n\\nthe EPA. This is so because a valid license ʺimmunizes the licensee from a charge\\n\\nof copyright infringement, provided that the licensee uses the copyright as\\n\\nagreed with the licensor.ʺ Davis v. Blige, 505 F.3d 90, 100 (2d Cir. 2007). Where a\\n\\nclaim turns on the scope of a license, ʺthe copyright owner bears the burden of\\n\\n\\n\\n 11\\n\\fproving that the defendantʹs [use] was unauthorized.ʺ Tasini v. N.Y. Times Co.,\\n\\n206 F.3d 161, 171 (2d Cir. 2000) (quoting Bourne v. Walt Disney Co., 68 F.3d 621,\\n\\n631 (2d Cir. 1995)).\\n\\n Whether the partiesʹ license agreement encompasses the defendantsʹ\\n\\nactivities is ʺessentiallyʺ a question of contract interpretation. See Bourne, 68 F.3d\\n\\nat 631. ʺ[A] written agreement that is complete, clear and unambiguous on its\\n\\nface must be enforced according to the plain meaning of its terms.ʺ Greenfield v.\\n\\nPhilles Records, Inc., 98 N.Y.2d 562, 569 (2002) (citing R/S Assocs. v. N.Y. Job Dev.\\n\\nAuth., 98 N.Y.2d 29, 32 (2002)).2 Where, however, ʺthe language used is\\n\\nsusceptible to differing interpretations, each of which may be said to be as\\n\\nreasonable as another, then the interpretation of the contract becomes a question\\n\\nof fact for the jury and extrinsic evidence of the partiesʹ intent properly is\\n\\nadmissible.ʺ Bourne, 68 F.3d at 629 (internal quotations marks omitted). The\\n\\nexistence of an ambiguity, if any, is to ʺbe ascertained from the face of an\\n\\nagreement without regard to extrinsic evidence.ʺ Reiss v. Fin. Perf. Corp., 97\\n\\n\\n\\n\\n2\\n The EPA does not contain a choice‐of‐law provision, but the parties agree that\\nNew York law applies. See Federal Ins. Co. v. Am. Home Assur. Co., 639 F.3d 557, 566 (2d\\nCir. 2011) (noting that where, during the course of litigation, ʺthe parties agree that New\\nYork law controls, this is sufficient to establish choice of lawʺ).\\n 12\\n\\fN.Y.2d 195, 199 (2001); see also Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co.,\\n\\n411 F.3d 384, 390 (2d Cir. 2005).\\n\\n B. Application\\n\\n We first consider whether the EPA unambiguously permitted MSEI\\n\\nto transfer the source code to MTA for reproduction and use in subsequent\\n\\nphases of the THS. We next consider whether MSEI or MTAʹs modification of\\n\\nUniversalʹs pre‐existing intellectual property was infringing. We hold, for the\\n\\nreasons discussed below, that the EPA unambiguously permitted MSEI and\\n\\nMTA to reproduce and use Universalʹs pre‐existing intellectual property in\\n\\nsubsequent phases of the THS. Defendantsʹ conduct was, therefore, not\\n\\ninfringing. We further conclude that MSEI and MTAʹs adaptation of the server\\n\\nsource code for use in additional testing stations was authorized by 17 U.S.C.\\n\\n§ 117(a) and thus non‐infringing.\\n\\n 1. Section 8.2(d) of the EPA Unambiguously Permitted MSEI\\n and MTA to Reproduce Universalʹs Pre‐Existing Source Code\\n\\n Universal argues that the EPA plainly prohibited MSEI from\\n\\nfurnishing MTA with the server and station source code to replicate the THS. It\\n\\nargues in the alternative that the relevant provisions of the EPA are ambiguous\\n\\nand that therefore their interpretation could not be resolved as a matter of law.\\n\\n 13\\n\\fWe disagree and hold that the EPA unambiguously permitted MSEI and MTA to\\n\\nreproduce Universalʹs source code for use in subsequent phases of the THS ‐‐\\n\\nconduct that constituted internal use.\\n\\n Section 8.2(d) of the EPA provides that ʺ[i]f [Universal] uses any Pre‐\\n\\nExisting Intellectual Property in connection with this Agreement, [Universal]\\n\\nhereby grants MSEI, MSEIʹs subcontractors, or suppliers, a non‐exclusive,\\n\\nroyalty‐free, worldwide, perpetual license to, use, reproduce, display, of the Pre‐\\n\\nExisting Intellectual property for MSEIʹs internal use only.ʺ J. Appʹx at 2336. It\\n\\nwas Universalʹs burden to prove that MSEI exceeded the scope of this license.\\n\\nSee Tasini, 206 F.3d at 171. To do so, it was required to prove that (1) MSEI or its\\n\\nʺsubcontractorʺ or ʺsupplierʺ (2) did more than ʺuse, reproduce, displayʺ for\\n\\nMSEIʹs ʺinternal use onlyʺ (3) Universalʹs ʺPre‐Existing Intellectual Property.ʺ\\n\\n First, MTA is a ʺsupplierʺ of MSEI. The plain meaning of ʺsupplierʺ\\n\\nunambiguously includes a component manufacturer like MTA. See Supplier,\\n\\nBlackʹs Law Dictionary (10th ed. 2014) (defining ʺsupplierʺ as ʺ[a] person or\\n\\nbusiness engaged, directly or indirectly, in making a product available to\\n\\nconsumersʺ); Supplier, Oxford English Dictionary (2d ed. 1989) (defining\\n\\nʺsupplierʺ as ʺone who . . . furnishes something neededʺ). Indeed, in its trial brief\\n\\n\\n\\n 14\\n\\fto the district court, Universal twice used the term ʺsupplierʺ in reference to\\n\\nMTA. J. Appʹx at 679, 685. Universalʹs argument that MTA is not a supplier thus\\n\\nfails.\\n\\n Second, MSEI and MTA had license to ʺuse, reproduce, displayʺ the\\n\\nintellectual property for MSEIʹs ʺinternal use only.ʺ J. Appʹx at 2336. The plain\\n\\nmeaning of ʺinternal useʺ clearly and unambiguously encompasses MSEIʹs\\n\\nagreement to permit its supplier to use the software to produce subsequent\\n\\nphases of the THS. There is no evidence that the source code was used by MSEI\\n\\nand MTA for anything other than developing and implementing phases two and\\n\\nthree of MSEIʹs internal test handling system.\\n\\n Universal contends that ʺinternal useʺ was meant to limit the license\\n\\nof ʺthird parties ‐‐ subcontractors and suppliers ‐‐ whose products, components,\\n\\nor services MSEI would be using internally as it tested products on Universalʹs\\n\\nTHS lineʺ at MSEIʹs premises. Appellantʹs Br. at 25; see also Appellantʹs Reply Br.\\n\\nat 12 (ʺMSEIʹs external provision of Universalʹs software to MTA to build the lines\\n\\nviolated Section 8.2(d).ʺ (emphasis in original)). We are unconvinced.\\n\\n This argument is premised on a physical internal‐external\\n\\ndichotomy, whereby a supplierʹs ʺuse, reproduc[tion], [or] displayʺ of Universalʹs\\n\\n\\n\\n 15\\n\\fintellectual property on MSEIʹs premises would be permitted, while the same use\\n\\nor reproduction off site would violate the license. But this cannot be the partiesʹ\\n\\nintent, because by its terms the license is ʺworldwideʺ in scope and extends to\\n\\nMSEIʹs suppliers and subcontractors. See EPA § 8.2(d). A license cannot\\n\\nsimultaneously be worldwide and limited to the physical confines of the\\n\\nlicenseeʹs premises. The more natural understanding of ʺinternal useʺ in this\\n\\ncontext is that the pre‐existing intellectual property could be used by or for\\n\\nMSEIʹs existing business ‐‐ not for resale or for the use or benefit of others. See\\n\\nInternal, Oxford English Dictionary (3d ed. 2015) (defining ʺinternalʺ as ʺaffairs\\n\\nand activities within an institution, organization, department, etc.; relating to\\n\\nsuch affairs or activities; applying or used within an organizationʺ); see also\\n\\nAnalect LLC v. Fifth Third Bancorp, 380 F. Appʹx 54, 58 (2d Cir. 2010) (summary\\n\\norder) (finding that contract prohibiting resale and distribution by purchaser did\\n\\nnot prohibit ʺinternal useʺ); Norwest Corp. v. C.I.R., 110 T.C. 454, 458 (1998)\\n\\n(ʺ[P]etitioner engaged in numerous projects involving the development of\\n\\ninternal use software ‐‐ that is, software developed solely for petitionerʹs internal\\n\\nbusiness and management purposes.ʺ). In the context of computer software, the\\n\\n\\n\\n\\n 16\\n\\fon‐premises, off‐premises distinction makes even less sense, given the nature of\\n\\nsoftware and source code.\\n\\n This understanding is reinforced by our recent holding that ʺunder\\n\\nlong‐established principles of agency law, a licensee under a non‐exclusive\\n\\ncopyright license may use third‐party assistance in exercising its license rights\\n\\nunless the license expressly provides otherwise.ʺ Great Minds v. Fedex Office &\\n\\nPrint Servs., Inc., 886 F.3d 91, 94 (2d Cir. 2018). Here, the license expressly\\n\\nprovided that the rights extended to MSEIʹs suppliers, which surely included\\n\\nMTA. Hence, MSEI and MTAʹs reproduction of the source code for MSEIʹs\\n\\ninternal use did not, as a matter of law, exceed the scope of the license. Because\\n\\nthere is nothing in the record to suggest that the source code was used for\\n\\nanything other than for MSEI in subsequent phases of its THS, MSEIʹs provision\\n\\nof the source code to MTA and MTAʹs use of the source code for MSEIʹS benefit\\n\\ndid not exceed the scope of the license, and thus was non‐infringing.\\n\\n 2. Modification of the Source Code was Authorized by 17 U.S.C.\\n § 117(a)\\n\\n We turn next to the question whether MSEI and MTA did more than\\n\\nʺuse, reproduce, [or] displayʺ Universalʹs pre‐existing source code ‐‐ that is,\\n\\n\\n\\n\\n 17\\n\\fwhether it modified the source code and, if so, whether the modification\\n\\ninfringed Universalʹs copyright.\\n\\n a. MSEI and MTA Modified the Server Source Code\\n\\n As Universal contends, evidence at trial showed that the server\\n\\nsource code that MSEI possessed differed from that delivered by Universal in\\n\\nOctober of 2008. Universalʹs expert witness Richard Hooper was ʺasked to\\n\\ncompare two sets of server source code.ʺ J. Appʹx at 1719. The first set of source\\n\\ncode was the THS server source code that Universal had in its files. The second\\n\\nset was the source code as it existed on MSEIʹs system at the time it was\\n\\nproduced in the course of litigation. Hooper testified that the server source code\\n\\nconsists of twenty or thirty individual files ʺthat hold the source code,ʺ which\\n\\nhave descriptive names like ʺAssemblyStationManager,ʺ ʺLogStationManagerʺ,\\n\\nʺMessageManager,ʺ ʺRF/ShakerManager,ʺ and ʺFeederShakerManager.ʺ Id. at\\n\\n1720‐23. He proceeded to show the jury a demonstrative, which included\\n\\nexcerpted line‐by‐line comparisons of the Universal and MSEI source code. He\\n\\nnoted that although the codes were nearly ʺidentical,ʺ there were ʺsome changes\\n\\nthat were made to the MSEI source code.ʺ Id. at 1724. For instance, the\\n\\nʺLogStationManagerʺ files were ʺ99.4 percent . . . exactly the same.ʺ Id. at 1725.\\n\\nHooper concluded that ʺMSEI started with the Universal source code and then\\n 18\\n\\fmade some changes to it. They added lines of code to it and they deleted lines of\\n\\ncode from it.ʺ Id. He also concluded that none of the source code was publicly\\n\\navailable.\\n\\n The conclusion that the server source code was modified by MSEI or\\n\\nMTA after delivery by Universal was reinforced by Christopher Demuth, who\\n\\nhelped Universal to develop the sever source code and was subsequently hired\\n\\nby MSEI to make modifications. DeMuth testified that in October 2009, MSEI\\n\\ncontacted him with a ʺpunch list of some features they wanted added, some\\n\\nchanges they wanted made to help improve efficiency of the line.ʺ Id. at 1633.\\n\\nHe made various modifications over the course of several years, in particular\\n\\nbecause MSEI was ʺworking on building another THS line and they needed\\n\\nmodifications to the THS server to support . . . communicating with all of the\\n\\n[new] stations.ʺ Id. at 1635‐38. Thus, the server source code was modified.\\n\\n Unlike the server source code, Universal does not seriously contend\\n\\nthat MSEI and MTA modified the station source code. Indeed, there is nothing in\\n\\nthe voluminous record indicating that the station software was modified.\\n\\nAlthough the MTA Agreement indicates that MTA would be required to\\n\\nʺ[m]odify, if necessary, and install SWʺ (SW means software) for each of the\\n\\n\\n\\n 19\\n\\fstations, id. at 2434‐35, it would be speculative to conclude, without something\\n\\nmore, that the station software was actually modified. We therefore proceed to\\n\\nconsider only whether MSEIʹs modification of the server source code was\\n\\nauthorized by 17 U.S.C. § 117(a).\\n\\n b. The Server Source Code Modifications Were Authorized\\n by 17 U.S.C. § 117(a)\\n\\n It is axiomatic that ʺ[a]n unlicensed use of the copyright is not an\\n\\ninfringement unless it conflicts with one of the specific exclusive rights conferred\\n\\nby the copyright statute.ʺ Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.\\n\\n417, 447 (1984). The Copyright Act grants copyright holders a bundle of\\n\\nexclusive rights, including the rights to ʺreproduce . . . in copies,ʺ ʺprepare\\n\\nderivative works,ʺ ʺdistribute copies,ʺ ʺperform,ʺ and ʺdisplayʺ their works. 17\\n\\nU.S.C. § 106. Source code, the human‐readable literal elements of software, is\\n\\ncopyrightable. See Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1355‐56 (Fed. Cir.\\n\\n2014). It is also well established that copyright owners may grant others license\\n\\nto use their rights. John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394, 410 (2d Cir.\\n\\n2018). But because copyright licenses prohibit any use not authorized, a licensee\\n\\ninfringes the ownerʹs copyright if its use exceeds the scope of its license. Gilliam\\n\\nv. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976) (noting that ʺ[o]ne who obtains\\n\\n\\n 20\\n\\fpermission to use a copyrightedʺ work ʺmay not exceed the specific purpose for\\n\\nwhich permission was grantedʺ and concluding that ʺunauthorized editing of the\\n\\nunderlying work, if proven, would constitute an infringement of the copyright in\\n\\nthat work similar to any other use of a work that exceeded the license granted by\\n\\nthe proprietor of the copyrightʺ); see also S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081,\\n\\n1088 (9th Cir. 1989). Thus, § 8.2(d) of the EPA arguably prohibits, at least\\n\\nimpliedly, MSEI and its suppliers from modifying Universalʹs pre‐existing\\n\\nintellectual property.\\n\\n The Copyright Act, however, provides an affirmative defense that\\n\\nallows the owner of a copy of a computer program to copy or modify the\\n\\nprogram for limited purposes without incurring liability for infringement. See 17\\n\\nU.S.C. § 117(a). Section 117(a) provides, in relevant part:\\n\\n Notwithstanding the provisions of section 106 [which lists the exclusive\\n rights of a copyright holder], it is not an infringement for the owner of a\\n copy of a computer program to make or authorize the making of another\\n copy or adaptation of that computer program provided:\\n\\n (1) that such a new copy or adaptation is created as an essential\\n step in the utilization of the computer program in conjunction with\\n a machine and that it is used in no other manner . . . .\\n\\nThus, a defendant seeking protection under § 117(a) must demonstrate that the\\n\\nnew adaptation (1) was made by the ʺowner of a copy of [the] computer\\n\\n\\n 21\\n\\fprogram,ʺ (2) was ʺcreated as an essential step in the utilization of the computer\\n\\nprogram in conjunction with a machine,ʺ and (3) was ʺused in no other manner.ʺ\\n\\n17 U.S.C. § 117(a); see Krause v. Titleserv, Inc., 402 F.3d 119, 122 (2d Cir. 2005). We\\n\\nconsider each requirement in turn.\\n\\n 1. MSEI Is the ʺowner of a copy of a computer\\n programʺ\\n\\n We have held that ʺownerʺ as used in § 117(a) does not require\\n\\nformal title in a program copy. Titleserv, 402 F.3d at 123. Instead, ʺcourts should\\n\\ninquire into whether the party exercised sufficient incidents of ownership over a\\n\\ncopy of the program to be sensibly considered the owner of the copy for\\n\\npurposes of § 117(a).ʺ Id. at 124.\\n\\n In Titleserv, we found the following facts sufficient to consider\\n\\ndefendant an owner under § 117(a): defendant paid plaintiff ʺsubstantial\\n\\nconsideration to develop the programs for its sole benefitʺ; plaintiff ʺcustomized\\n\\nthe software to serve [defendantʹs] operationsʺ; plaintiff stored copies ʺon a\\n\\nserver owned by [defendant]ʺ; plaintiff ʺnever reserved the right to repossess the\\n\\ncopies used by [defendant] and agreed that [defendant] had the right to continue\\n\\nto possess and use the programs forever, regardless whether its relationship with\\n\\n\\n\\n\\n 22\\n\\f[defendant] terminatedʺ; and ʺ[defendant] was similarly free to discard or\\n\\ndestroy the copies any time it wished.ʺ Id.\\n\\n For similar reasons, we conclude as a matter of law that MSEI\\n\\nowned copies of the server software within the meaning of § 117(a). MSEI paid\\n\\nUniversal over $1 million for the combined hardware and software solution.\\n\\nUniversal customized the software to serve MSEIʹs precise needs.3 Universal\\n\\nexpressly ʺprovidedʺ a copy of the server software to MSEI with the sole\\n\\ncondition that ʺMSEI assume[d] the risk of invalidating the warranty in the event\\n\\na change made by MSEI to the source code cause[d] damage to any of the THS\\n\\nline hardware.ʺ J. Appʹx at 2361. Universal granted MSEI and its suppliers\\n\\nbroad rights to the server source code ‐‐ a perpetual, worldwide license to use,\\n\\nreproduce, and display the software for MSEIʹs internal use. J. Appʹx at 2336.\\n\\nAlthough the terms of the EPA expired on December 31, 2012, MSEIʹs rights to\\n\\n\\n\\n\\n3 Frank Caudrillier, Universalʹs project manager for the THS, testified that ʺthe\\nTHS server was developed based on . . . some common tools that we had . . . developed\\npreviously, and then customized . . . to respond to the requirements of [MSEI].ʺ J.\\nAppʹx at 1511. Kevin Ford, Universalʹs lead software engineer, testified that the server\\nsource code was ʺcreated specifically for the THS lineʺ to ʺimplement[] MSEIʹs\\nrequirements.ʺ Id. at 1668‐69. A change order in evidence shows that modifications\\nwere made to ʺTHS interface, module information table, reseat and correlate,ʺ which\\nFord testified were modifications to the server source code. Id. at 1670‐71.\\n\\n 23\\n\\fthe software ʺcontinue perpetually and do not terminate upon completion of the\\n\\nservices.ʺ Id. at 2337. Nothing in the arrangement between MSEI and Universal\\n\\nindicates that MSEI was in any way restricted from discarding or disposing of\\n\\nthe software as it wished. For all of these reasons, MSEI was an owner of the\\n\\nstation and server source code under § 117(a).\\n\\n Universal contends that MSEI was not an owner because § 8.2(d)\\n\\nʺseverely limitedʺ MSEIʹs rights to the software. For support, it cites DSC\\n\\nCommunications Corp. v. Pulse Communications, Inc., 170 F.3d 1354 (Fed. Cir. 1999).\\n\\nBut as we noted in Titleserv, the defendant in DSC Communications was expressly\\n\\nprohibited from using the software on hardware other than that provided by\\n\\nplaintiff. 402 F.3d at 123. MSEI faced no such prohibition. In fact, under the\\n\\nEPA, MSEI was authorized to use and reproduce the software at will so long as\\n\\nits uses were ʺinternal.ʺ\\n\\n Universalʹs argument does find some additional support from the\\n\\nNinth Circuit, which has held ʺthat a software user is a licensee rather than an\\n\\nowner of a copy where the copyright owner (1) specified that the user is granted\\n\\na license; (2) significantly restricts the userʹs ability to transfer the software; and\\n\\n(3) imposes notable use restrictions.ʺ Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111\\n\\n\\n\\n 24\\n\\f(9th Cir. 2010) (footnote omitted). Although the EPA granted MSEI a license that\\n\\nwas limited to MSEIʹs internal use, it subsequently transferred a copy of the\\n\\nserver source code to MSEI with the sole condition that MSEI would be liable for\\n\\nany damage caused by modifications. J. Appʹx at 2361. Several Universal\\n\\nemployees, including its executives, as well as MSEI employees, testified that this\\n\\nprovision resolved the issue of ʺsource code ownership.ʺ Id. at 1048, 1270‐71,\\n\\n1453‐54, 1545, 2126‐27. In an email to MSEI on October 31, 2008 ‐‐ the date of\\n\\nfinal delivery ‐‐ Universal stated internally, ʺAs you can see, we are trying to get\\n\\naway from the Source Code.ʺ Id. at 2632. It then told MSEI, ʺwe are ready to let\\n\\nyou assume ownership of the line.ʺ Id. at 3009. Thereafter, Universal instructed\\n\\nits team to ʺget the source code to them todayʺ and to ʺbe sure it is packaged and\\n\\nready to [sic] (or email it to them or give them the key or whatever).ʺ Id. at 2632.\\n\\n Thus, for the purposes of applying § 117(a), a reasonably jury could\\n\\nonly find that MSEI owned a copy of the THS software.\\n\\n 2. The Adaptation was ʺcreated as an essential step\\n in the utilization of the computer program in\\n conjunction with a machineʺ\\n\\n To receive the protection of § 117(a), MSEI must also demonstrate\\n\\nthat its modification of the software was ʺan essential step in the utilization of the\\n\\ncomputer program[s] in conjunction with a machine.ʺ In Aymes v. Bonelli, the\\n 25\\n\\fdefendant retail store used programs to track inventory and sales, and generally\\n\\norganize its records. 47 F.3d 23, 24 (2d Cir. 1995). The defendants modified the\\n\\nprograms to keep them up‐to‐date and to ensure their compatibility with\\n\\nsuccessive generations of computer systems. Id. at 26. We held that the\\n\\nmodifications were essential to the defendantsʹ utilization of the programs within\\n\\nthe meaning of § 117(a)(1) because the ʺadaptations were essential to allow use of\\n\\nthe program[s] for the very purpose for which [they were] purchased.ʺ Id. at 27.\\n\\n In Titleserv, the defendant used the programs at issue ʺto track and\\n\\nreport on the status of client requests and other aspects of its operations.ʺ 402\\n\\nF.3d at 120. The defendant modified the programs by correcting bugs,\\n\\nʺperforming routine tasks necessary to keep the programs up‐to‐date and to\\n\\nmaintain their usefulness to [defendant],ʺ incorporating the programs into a new\\n\\nsystem implemented by defendant, and adding new capabilities to help ʺmake\\n\\nthe programs more responsive to the needs of [defendantʹs] business.ʺ Id. at 125.\\n\\nWe reiterated, as we originally held in Aymes, that ʺadaptation of the copy of\\n\\nthe[] software so that it would continue to function on the defendantsʹ new\\n\\ncomputer systemʺ constituted an ʺessential stepʺ within the meaning of § 117(a).\\n\\nId. at 126. We further held that the ʺaddition of new features,ʺ which ʺwere not\\n\\n\\n\\n 26\\n\\fstrictly necessary to keep the programs functioning, but were designed to\\n\\nimprove their functionality in serving the business for which they were created,ʺ\\n\\nwere also ʺessential.ʺ Id.; see also Final Report of the National Commission on New\\n\\nTechnological Uses of Copyrighted Works 13 (1978) [hereinafter ʺCONTU Reportʺ]\\n\\n(ʺ[A] right to make those changes necessary to enable the use for which it was\\n\\nboth sold and purchased should be provided. The conversion of a program from\\n\\none higher‐level language to another to facilitate use would fall within this right,\\n\\nas would the right to add features to the program that were not present at the\\n\\ntime of rightful acquisition.ʺ). In doing so, however, we noted an important\\n\\nlimitation: an ʺessentialʺ improvement ought not to ʺharm the interests of the\\n\\ncopyright proprietor.ʺ Id. at 129 (citing CONTU Report at 13).\\n\\n As Universalʹs witnesses testified, the copy of the server software\\n\\ngiven to MSEI was ʺpretty much identicalʺ to the copy owned by MSEI. J. Appʹx\\n\\nat 1724. The modifications that were made were undertaken ʺto help improve\\n\\nefficiency of the line,ʺ id. at 1633, and to enable the server software to ʺsupport\\n\\n. . . communicating with all of the [new] stations.ʺ Id. at 1635‐38. The\\n\\nmodifications were, therefore, ʺdesigned to improve [the server source codeʹs]\\n\\n\\n\\n\\n 27\\n\\ffunctionality in serving the business for which [it was] created.ʺ Titleserv, 402\\n\\nF.3d at 126.\\n\\n Universal claims that MSEIʹs provision of the source code to MTA ‐‐\\n\\nʺa competitorʺ of MSEI ‐‐ is exactly the sort of harm we indicated in Titleserv\\n\\nmight present ʺ[a] different scenario.ʺ Id. We disagree that this is the sort of\\n\\nharm envisioned by § 117(a). By its terms, § 117(a) permits the owner of a copy\\n\\nʺto make or authorize the making . . . of another adaptation.ʺ 17 U.S.C. § 117(a)\\n\\n(emphasis added). And, as we held above, Universal expressly authorized MSEI\\n\\nand its suppliers and subcontractors to use and reproduce the software at issue.\\n\\nTrue, alterations that ʺsomehow interfere[] with [a copyright ownerʹs] access to,\\n\\nor ability to exploit, the copyrighted workʺ might render modifications non‐\\n\\nessential under § 117(a), but where the copyright owner ʺenjoy[s] no less\\n\\nopportunity after . . . changes, than before, to use, market, or otherwise reap the\\n\\nfruits of the copyrighted programs that he created,ʺ the changes may properly be\\n\\nconsidered essential under § 117(a). Titleserv, 402 F.3d at 129.\\n\\n MSEIʹs use did not inhibit Universalʹs ability to market or sell its\\n\\nserver software to others, nor did it divulge sensitive Universal information or\\n\\nenrich MSEI or MTA at the expense of Universal. MSEI made and authorized the\\n\\n\\n\\n 28\\n\\fmaking of minor modifications, narrowly tailored to adapting the server\\n\\nsoftware for the use for which it was designed ‐‐ orchestration of the test handing\\n\\nstations to ensure the quality of MSEIʹs implantable medical devices.\\n\\n Accordingly, we hold that a reasonable jury could only find that the\\n\\nmodifications made by MSEI were essential as they allowed the existing server\\n\\nsoftware to interact with additional systems in the manner intended when the\\n\\nsource code was developed for MSEI.\\n\\n 3. The Adaptation was ʺused in no other mannerʺ\\n\\n Finally, to warrant the protection of § 117(a), MSEI must show that\\n\\nthe server software was ʺused in no other manner,ʺ that is, it was used only to\\n\\nmake an adaptation as an essential step in utilizing the software in conjunction\\n\\nwith the test handling system. Universal argues that MSEIʹs modification of the\\n\\nserver software to operate with new machines, rather than the existing machines\\n\\ncreated by Universal, defeats MSEIʹs claim to protection from § 117(a).\\n\\n ʺWhether a questioned use is a use in another manner . . . depend[s]\\n\\non the type of use envisioned in the creation of the program.ʺ Titleserv, 402 F.3d\\n\\nat 129. The server software was designed to be the ʺbrains of the operation,ʺ J.\\n\\nAppʹx at 988, which ʺsynchronize[d] the activities of the hardware and softwareʺ\\n\\nand was ʺresponsible for coordinating the movement of the module trays,ʺ id. at\\n 29\\n\\f2606. These are precisely the purposes for which MSEI and MTA made\\n\\nmodifications, as indicated in the Statement of Work. See id. at 2366 (ʺUpdate\\n\\nTHS Server software to add functionality for the new stations.ʺ); see also id. at\\n\\n2367 (ʺScope of the project . . . is first to replicate the existing system . . . , and\\n\\nthen expand this configuration to add the capability to add three . . . electrical\\n\\ntesters . . . , one RF testing stations and one Shaker test station.ʺ). There is\\n\\nnothing in the record to suggest that the server source code was used for any\\n\\npurpose other than to adapt the system to handle new testing stations for MSEIʹs\\n\\ninternal use. See Titleserv, 402 F.3d at 130 (ʺWhat is important is that the\\n\\ntransaction for which the programs are used is the type of transaction for which\\n\\nthe programs were developed.ʺ). Thus, MSEI ʺsimply increased the versatility of\\n\\nthe programs by allowing themʺ to interoperate with new test handling stations,\\n\\nwhich ʺconstitutes use in the same manner, with the benefit of an adaptation\\n\\nincreasing versatility.ʺ Id.\\n\\n Moreover, the server software customized by Universal for MSEI\\n\\nwas part of the first phase of MSEIʹs multi‐phased test handling system project.\\n\\nUniversal was aware that the project had additional phases when it signed the\\n\\nEPA, and at that time it had no guarantees that it would be chosen to supply the\\n\\n\\n\\n 30\\n\\flater phases. The addition of new systems was, therefore, a use contemplated at\\n\\nthe outset.4\\n\\n For the foregoing reasons, we conclude as a matter of law that it was\\n\\nnot an infringement for MSEI as the ʺowner of a copy of a computer program,ʺ or\\n\\nMTA as MSEIʹs supplier, to ʺmake or have made [an] adaptation,ʺ where ʺsuch\\n\\nadaptation was created as an essential step in the utilization of the computer\\n\\nprogram in conjunction with a machine and . . . in no other manner.ʺ 17 U.S.C.\\n\\n§ 117(a).\\n\\nII. Breach of Contract\\n\\n MSEI and MTAʹs use and reproduction of Universalʹs pre‐existing\\n\\nintellectual property for use in subsequent phases of the THS was non‐infringing\\n\\nbecause defendants were expressly licensed to do so under § 8.2(d) of the EPA.\\n\\nSee supra Part I.B.1. It necessarily follows that MSEIʹs use and reproduction of the\\n\\nsource code was not in breach of the EPA. See Davis, 505 F.3d at 100; Bourne, 68\\n\\nF.3d at 631. Universalʹs breach of contract claim is thus reduced to its assertion\\n\\nthat MSEI breached the EPA by modifying the server source code. We do not\\n\\n\\n\\n4 We note also that Universal was aware that the project to ʺreplicate the existing\\nsystemʺ was awarded to MTA in April 2010, J. Appʹx at 1014, 2878, and yet it did not\\nobject to MTAʹs provision of subsequent phases of the system, including modifying the\\nserver source code, until July 2013 when this action was filed.\\n 31\\n\\freach the merits of this question, however, because what remains of Universalʹs\\n\\nbreach of contract claim is preempted by the Copyright Act.\\n\\n The Copyright Act exclusively governs a claim when (1) the\\n\\nparticular work to which the claim is being applied falls within the type of works\\n\\nprotected by the Copyright Act under 17 U.S.C. §§ 102 and 103, and (2) the claim\\n\\nseeks to vindicate legal or equitable rights that are equivalent to one of the\\n\\nbundle of exclusive rights already protected by copyright law under 17 U.S.C.\\n\\n§ 106. Briarpatch L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004). ʺA\\n\\nstate law right is equivalent to one of the exclusive rights of copyright if it may\\n\\nbe abridged by an act which, in and of itself, would infringe one of the exclusive\\n\\nrights.ʺ Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 430\\n\\n(2d Cir. 2012) (internal quotation marks omitted). ʺʹBut if an extra element is\\n\\nrequired instead of or in addition to the acts of reproduction, performance,\\n\\ndistribution or display, in order to constitute a state‐created cause of action,ʹ\\n\\nthere is no preemption.ʺ Id. (quoting Comput. Assocs. Intʹl, Inc. v. Altai, Inc., 982\\n\\nF.2d 693, 716 (2d Cir. 1992)). Preemption, therefore, turns on ʺwhat [the] plaintiff\\n\\nseeks to protect, the theories in which the matter is thought to be protected and\\n\\n\\n\\n\\n 32\\n\\fthe rights sought to be enforced.ʺ Comput. Assocs., 982 F.2d at 716 (internal\\n\\nquotation marks omitted).\\n\\n As we have recognized, ʺpreemption cannot be avoided simply by\\n\\nlabeling a claim ʹbreach of contract.ʹʺ Forest Park, 683 F.3d at 432; see also 5\\n\\nNimmer on Copyright § 19D.03[C][2][b] (suggesting that a contract that ʺdoes\\n\\nnot purport to give [the plaintiff] any protection beyond that provided . . . by\\n\\ncopyright law itselfʺ would be preempted). In Forest Park, we held the contract at\\n\\nissue not to be preempted because it included an ʺextra elementʺ of a promise to\\n\\npay, and plaintiff sought contract damages when defendant used plaintiffʹs\\n\\ncopyrighted work without paying for the privilege. Forest Park, 683 F.3d at 428.\\n\\nHere, by contrast, there is no dispute over payment. Universal does not argue\\n\\nthat defendants violated the EPA by failing to pay for use of the intellectual\\n\\nproperty.\\n\\n What remains of Universal breach of contract claim is that MSEIʹs\\n\\nmodification of the source code exceeded the scope of the license contained in the\\n\\nEPA. This claim does not include an ʺextra elementʺ that is different from those\\n\\nof its copyright infringement claim. The prohibition against modification is not\\n\\nexplicit in the EPA; it is, instead, arguably implied because copyright licenses are\\n\\n\\n\\n 33\\n\\fassumed to permit those uses not expressly authorized. Gilliam, 538 F.2d at 20.\\n\\nUniversal therefore necessarily seeks to vindicate its exclusive rights under 17\\n\\nU.S.C. § 106. That Universal and MSEI are in contractual privity does nothing to\\n\\nchange the fact that vindication of an exclusive right under the Copyright Act,\\n\\nread into a license by negative implication, is preempted by the Copyright Act.\\n\\nSee 3 Nimmer § 10.15[A] (noting that ʺuse by the grantee without authority from\\n\\nthe grantorʺ leads to the legal consequence ʺthat the granteeʹs conduct may\\n\\nconstitute copyright infringementʺ). In Kamakazi Music Corp. v. Robbins Music\\n\\nCorp., we held that a licensorʹs suit against a licensee whose license had expired\\n\\nwas for copyright infringement, not breach of contract. 684 F.2d 228, 230 (2d Cir.\\n\\n1982). This rationale extends equally to a licensor whose use arguably exceeds\\n\\nthe scope, rather than the duration, of a license. See Marshall v. New Kids On The\\n\\nBlock Pʹship, 780 F. Supp. 1005, 1008‐09 (S.D.N.Y. 1991). Because this portion of\\n\\nUniversalʹs breach of contract claim seeks solely to vindicate an exclusive right\\n\\nunder the Copyright Act, it is preempted. It thus fails as a matter of law because,\\n\\nas discussed supra Part I.B.2, the affirmative defense of § 117(a) bars recovery to\\n\\nUniversal on the theory that MSEI or MTAʹs modifications to the server source\\n\\ncode infringed Universalʹs copyright.\\n\\n\\n\\n 34\\n\\fIII. Misappropriation of Trade Secrets\\n\\n A plaintiff claiming misappropriation of a trade secret must prove\\n\\nthat (1) ʺit possessed a trade secret,ʺ and (2) the trade secret was used by\\n\\ndefendant ʺin breach of an agreement, confidence, or duty, or as a result of\\n\\ndiscovery by improper means.ʺ Integrated Cash Mgmt. Servs., Inc. v. Digital\\n\\nTransactions, Inc., 920 F.2d 171, 173 (2d Cir. 1990). We do not reach the merits of\\n\\nthis claim, however, because it is time‐barred by the applicable statute of\\n\\nlimitations.\\n\\n In New York, a cause of action for the misappropriation of trade\\n\\nsecrets is governed by a three‐year statute of limitations, while claims for\\n\\nequitable relief are subject to a six‐year statute of limitations. Compare N.Y.\\n\\nC.P.L.R. § 214(4) (providing three‐year‐statute of limitations for claims of\\n\\nmisappropriation of trade secrets), with id. § 213(1) (providing six‐year statute of\\n\\nlimitations for claims seeking equitable relief). Universal argues that its claim for\\n\\ninjunctive relief is governed by the more generous six‐year limitations period.\\n\\n ʺ[C]ourts determine the applicable limitations period . . . by\\n\\nanalyzing the substantive remedy that the plaintiff seeks.ʺ ABS Entmʹt, Inc. v.\\n\\nCBS Corp., 163 F. Supp. 3d 103, 108 (S.D.N.Y. 2016) (applying New York law).\\n\\n\\n\\n 35\\n\\fʺWhere the remedy sought is purely monetary in nature, courts construe the suit\\n\\nas alleging ʹinjury to propertyʹ within the meaning of CPLR 214(4), which has a\\n\\nthree‐year limitations period.ʺ IDT Corp. v. Morgan Stanley Dean Witter & Co., 12\\n\\nN.Y.3d 132, 139 (2009). In IDT, the equitable relief was incidental to the damages\\n\\nsought, so ʺlooking to the reality, rather than the form, of [the] action,ʺ the New\\n\\nYork State Court of Appeals concluded that IDT principally sought a monetary\\n\\nremedy and, thus, held that the three‐year statute of limitations applied. Id. at\\n\\n139‐40. Similarly, in this case, the main remedy that Universal seeks is monetary\\n\\ndamages. Universalʹs Third Amended Complaint requested that it be awarded\\n\\nprofits and a royalty, not just an injunction, in connection with its\\n\\nmisappropriation of trade secrets claim, as well as double damages, punitive\\n\\ndamages, and attorneysʹ fees. Therefore, because the reality of the cause of action\\n\\nis that it is one for damages, not injunctive relief, the three‐year statute of\\n\\nlimitations applies.\\n\\n Universal argues that this statute of limitations should be tolled or\\n\\nextended on a continuing tort theory. ʺA continuing tort theory may apply . . .\\n\\nwhere the plaintiff alleges that a defendant has kept a secret confidential but\\n\\ncontinued to use it for commercial advantage.ʺ Andrew Greenberg, Inc. v. Svane,\\n\\n\\n\\n 36\\n\\fInc., 830 N.Y.S.2d 358, 362 (App. Div. 2007). ʺWhere, however, the ʹplaintiff had\\n\\nknowledge of the defendantʹs misappropriation and use of its trade secret, the\\n\\ncontinuing tort doctrine does not apply.ʹʺ PaySys Intʹl, Inc. v. Atos Se, No. 14‐\\n\\n10105, 2016 WL 7116132, at * 9 (S.D.N.Y. Dec. 5, 2016) (quoting VoiceOne\\n\\nCommcʹns, LLC v. Google Inc., No. 12‐9433, 2014 WL 10936546, at *10 (S.D.N.Y.\\n\\nMar. 31, 2014)) (citing cases). Here, Universal had knowledge of MSEI and\\n\\nMTAʹs alleged misappropriation and use of its trade secret and, accordingly, the\\n\\ncontinuing tort theory does not apply.\\n\\n The evidence shows that Universal was put on notice of its\\n\\nmisappropriation of trade secrets claim more than three years prior to filing its\\n\\ncomplaint on July 15, 2013. Accrual of the statute of limitations begins when ʺa\\n\\nreasonably diligent person in plaintiffʹs position would have been put on inquiry\\n\\nas to theʺ claim. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992). Universalʹs\\n\\nexecutive chairman, Jean‐Luc Pelissier, testified that in 2009 he understood that\\n\\nthere were other companies besides Universal bidding on THS2. He also\\n\\ntestified that he understood that when MSEI said it wanted to replicate the THS\\n\\nline, that included the software. On April 16, 2010, MSEI sent an email to\\n\\nUniversal informing Universal that MSEI awarded the business for the THS\\n\\n\\n\\n 37\\n\\freplication project to MTA. Based on this evidence, a reasonably diligent person\\n\\nwould have been put on notice of the misappropriation of trade secrets claim ‐‐\\n\\nthat is, that MSEI gave Universalʹs software and source code to MTA so MTA\\n\\ncould replicate and modify it to build the second THS line. Yet Universal did not\\n\\nassert the claim until more than three years later, in July of 2013. Thus,\\n\\nUniversalʹs claim is time‐barred.\\n\\nIV. Unfair Competition\\n\\n Universalʹs remaining claim against MTA for unfair competition\\n\\nwas also properly dismissed. ʺThe essence of an unfair competition claim under\\n\\nNew York law is that the defendant has misappropriated the labors and\\n\\nexpenditures of anotherʺ with ʺsome element of bad faith.ʺ Saratoga Vichy Spring\\n\\nCo. v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980). MTA was informed prior to\\n\\nexecuting the MTA Agreement that MSEI and its suppliers were licensed to use\\n\\nand reproduce Universalʹs source code. Moreover, Bob Archer, MTAʹs CEO and\\n\\nco‐owner, testified at trial that MTA relied on the language of the EPA in\\n\\nagreeing to supply MSEI with subsequent phases of the THS.\\n\\n As we have held, the EPA in fact authorized MTA as MSEIʹs\\n\\nsupplier to use and reproduce Universalʹs pre‐existing intellectual property for\\n\\n\\n\\n 38\\n\\fthe THS replication project. See supra Part I.B.1. And to the extent MTA adapted\\n\\nthe server source code, such adaptions were authorized under federal law. See\\n\\nsupra Part I.B.2. In these circumstances, no reasonable juror could have found\\n\\nthat MTA acted in bad faith in agreeing to replicate the THS line for MSEIʹs\\n\\ninternal use and for no other purpose. See Jeffrey Milstein, Inc. v. Gregor, Lawlor,\\n\\nRoth, Inc., 58 F.3d 27, 35 (2d Cir. 1995). Accordingly, we affirm the district courtʹs\\n\\ndismissal of this claim.\\n\\n CONCLUSION\\n\\n Accordingly, for the reasons set forth above, the judgment of the\\n\\ndistrict court is AFFIRMED.\\n\\n\\n\\n\\n 39\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1982,"cells":{"id":{"kind":"number","value":4617530,"string":"4,617,530"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Evans"},"decision_date":{"kind":"string","value":"2019-05-08"},"docket_number":{"kind":"string","value":"17-2245-cr"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DEBRA ANN LIVINGSTON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2245‐cr \\nUnited States v. Evans \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n August Term 2018 \\n \\n Argued: September 24, 2018 Decided: May 8, 2019 \\n \\n No. 17‐2245‐cr \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\n UNITED STATES OF AMERICA \\n \\n Appellee, \\n \\n ‐v.‐ \\n \\n RONALD EVANS, \\n \\n Defendant‐Appellant, \\n \\n TASHINE KNIGHTER, \\n \\n Defendant. \\n \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\nBefore: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge. \\n \\n\\n\\n\\n Judge Geoffrey W. Crawford, of the United States District Court for the District of \\nVermont, sitting by designation. \\n\\f \\n Defendant‐Appellant Ronald Evans appeals the district court’s June 16, 2017 \\ndecision and order resentencing him to 180 months’ imprisonment following both \\nhis guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. \\n§§ 922(g)(1) and 924(e), and the subsequent grant of his habeas petition on the \\nground that his original sentence was rendered retroactively invalid under Johnson \\nv. United States, 135 S.Ct. 2551 (2015). Evans now claims that two of his ACCA \\npredicates—second‐degree burglary under North Carolina law and federal bank \\nrobbery—do not qualify as “violent felonies” under ACCA. We conclude that \\nsecond‐degree burglary under North Carolina law qualifies categorically as a \\nviolent felony under ACCA’s “enumerated clause.” We also conclude that \\nfederal bank robbery qualifies categorically as a violent felony under ACCA’s \\n“elements clause.” The district court therefore did not err in determining that \\nEvans was subject to ACCA’s mandatory minimum term of imprisonment of 180 \\nmonths. Accordingly, the judgment of the district court is AFFIRMED. \\n \\nFOR APPELLEE: MONICA J. RICHARDS, Assistant United \\n States Attorney, for James P. Kennedy, Jr., \\n United States Attorney for the Western \\n District of New York, Buffalo, New York. \\n \\nFOR DEFENDANT‐APPELLANT: REETUPARNA DUTTA, Hodgson Russ LLP, \\n Buffalo, New York. \\n \\n \\n\\nDEBRA ANN LIVINGSTON, Circuit Judge: \\n\\n The Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B), \\n\\nimposes a 15‐year mandatory minimum sentence if a defendant is convicted of \\n\\nbeing a felon in possession of a firearm following three prior convictions for a \\n\\n“violent felony.” This appeal presents the latest entry in a series of cases defining \\n\\noffenses that qualify as “violent felonies” for an enhanced sentence under ACCA. \\n\\n\\n 2 \\n\\f \\nSpecifically, this case calls upon us to answer two questions of first impression in \\n\\nthis Circuit: (1) whether second‐degree burglary in violation of North Carolina \\n\\nGeneral Statute § 14‐51 qualifies as a “violent felony” under ACCA’s “enumerated \\n\\nclause”; and (2) whether federal bank robbery in violation of 18 U.S.C. § 2113(a) \\n\\nqualifies as a “violent felony” under ACCA’s “elements clause.” For the reasons \\n\\noutlined below, we answer these two questions in the affirmative and hold that \\n\\nboth statutes are “violent felonies” within the ambit of ACCA. We therefore \\n\\nAFFIRM the July 14, 2017 judgment of the district court sentencing Defendant‐\\n\\nAppellant Ronald Evans pursuant to ACCA (Richard J. Arcara, Judge).1 \\n\\n\\n\\n\\n1 Evans’s Notice of Appeal, filed on June 30, 2017, refers only to the district court’s \\nsentence entered on June 16, 2017. The district court did not enter judgment until July \\n14, 2017. We construe Evans’s Notice of Appeal as referring to the July 14th judgment. \\nSee Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court announces a decision, \\nsentence, or order—but before the entry of the judgment or order—is treated as filed on \\nthe date of and after the entry.”); see also Manrique v. United States, 137 S.Ct. 1266, 1273 \\n(2017) (construing Federal Rule of Appellate Procedure 4(b)(2)). \\n\\n\\n 3 \\n\\f \\n BACKGROUND \\n\\n I. Factual Background2 \\n\\n Defendant‐Appellant Ronald Evans (“Evans”) was charged by way of a \\n\\nseven‐count indictment with manufacturing and uttering counterfeit currency and \\n\\nconspiracy to manufacture and utter counterfeit currency, in violation of 18 U.S.C. \\n\\n§§ 471, 472, 473 and 2, and unlawful possession of a firearm by a felon, in violation \\n\\nof 18 U.S.C. §§ 922(g)(1) and 924(e). On July 26, 2011 Evans pled guilty to the \\n\\ncount of the indictment charging him with being a felon in possession of a firearm. \\n\\nACCA provides that a person who violates § 922(g) and who has three previous \\n\\nconvictions for a “violent felony” shall be imprisoned for a minimum of 15 years. \\n\\n18 U.S.C. § 924(e). ACCA defines “violent felony” as “any crime punishable by \\n\\nimprisonment for a term exceeding one year” that \\n\\n (i) has as an element the use, attempted use, or threatened use of \\n physical force against the person of another; or \\n \\n (ii) is burglary, arson, or extortion, involves use of explosives, or \\n otherwise involves conduct that presents a serious potential risk of \\n physical injury to another. \\n \\n\\n\\n\\n2 The factual background presented here is derived from undisputed facts from the \\nparties’ submissions, uncontroverted testimony presented at sentencing, and Evans’s \\npresentencing report. \\n\\n\\n 4 \\n\\f \\nId. at § 924(e)(2)(B). The first clause is referred to as ACCA’s “elements clause,” \\n\\nStokeling v. United States, 139 S.Ct. 544, 549 (2019), the first portion of the second \\n\\nclause—“is burglary, arson, or extortion”—as ACCA’s “enumerated clause,” id. at \\n\\n556, and the remainder as ACCA’s “residual clause,” Johnson v. United States, 135 \\n\\nS.Ct. 2551, 2556 (2015). Evans acknowledged in his written plea agreement that \\n\\nhe qualified as an armed career criminal based on three prior violent felony \\n\\nconvictions, subjecting him to a 15‐year mandatory minimum sentence. The \\n\\ndistrict court accordingly sentenced Evans to 180 months’ imprisonment on \\n\\nSeptember 25, 2012. \\n\\n On May 3, 2016 Evans filed a motion in conjunction with a previously filed \\n\\nhabeas petition, asserting that his ACCA status had been rendered retroactively \\n\\ninvalid under Johnson, 135 S.Ct. at 2257, which struck down ACCA’s residual \\n\\nclause under the void‐for‐vagueness doctrine. The district court granted Evans’s \\n\\nmotion, concluding that his prior sentence had indeed been rendered retroactively \\n\\ninvalid under Johnson because one of his three ACCA predicate convictions (for \\n\\nattempted burglary in the third‐degree in violation of N.Y. Penal Law § 140.20) \\n\\nhad qualified as a violent felony only under ACCA’s voided residual clause. The \\n\\ndistrict court, however, transferred the matter to the original sentencing judge for \\n\\n\\n\\n 5 \\n\\f \\nresentencing, directing the court to consider whether any of Evans’s other prior \\n\\nconvictions could be substituted as ACCA predicates. \\n\\n At a resentencing hearing held on June 16, 2017, the district court \\n\\ndetermined that among Evans’s criminal history at least three offenses qualified \\n\\nas “violent felonies” under ACCA, such that Evans continued to face a mandatory \\n\\nminimum sentence of 15 years. Appendix (“A.”) 477–505. First, Evans was \\n\\nconvicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a). \\n\\nAccording to his presentencing report, this conviction occurred after he \\n\\napproached a teller window at a bank branch in Buffalo, New York, and then \\n\\nhanded the teller a blue tote bag and a demand note that read, “I have a gun fill \\n\\nbag.” Next, in 1983, Evans was convicted of federal armed bank robbery in \\n\\nviolation of 18 U.S.C. § 2113(d). The conduct underlying this conviction involved \\n\\nEvans and two co‐conspirators entering a bank in Buffalo wearing ski masks and \\n\\narmed with a pistol and a shotgun, yelling “Everyone get down, this is a hold up!” \\n\\nFinally, Evans was convicted in 2001 in North Carolina of second‐degree burglary \\n\\nin violation of N.C. Gen Stat. § 14‐51. According to his presentencing report, this \\n\\nconviction occurred after he and an accomplice broke into a home, confined and \\n\\nrestrained the victims therein, hit one victim with a hand gun and proceeded to \\n\\n\\n\\n 6 \\n\\f \\nsteal property with a combined value of $30,000. The district court determined \\n\\nthat the first two offenses qualified categorically as violent felonies under ACCA’s \\n\\nelements clause, and that the final offense qualified categorically as a violent \\n\\nfelony under ACCA’s enumerated clause. Accordingly, the district court re‐\\n\\nsentenced Evans to 180 months’ imprisonment, the same sentence as was \\n\\noriginally imposed. This appeal followed. \\n\\n DISCUSSION \\n\\n Having laid out the facts surrounding Evans’s appeal, we now set them \\n\\naside in order to ascertain whether his predicate convictions qualify as crimes of \\n\\nviolence under ACCA. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) \\n\\n(“Facts . . . are mere real‐word things . . . . ACCA . . . cares not a whit about them.” \\n\\n(internal citation omitted)). On appeal we consider Evans’s claim that two of his \\n\\nACCA predicates—second‐degree burglary under North Carolina law and federal \\n\\n\\n\\n\\n 7 \\n\\f \\nbank robbery—do not categorically qualify as crimes of violence within the \\n\\nmeaning of 18 U.S.C. § 924(e).3 We conclude that they do. \\n\\n I \\n\\n We first consider whether Evans’s conviction for second‐degree burglary \\n\\nunder North Carolina law qualifies as a “crime of violence” under ACCA’s so‐\\n\\ncalled “enumerated clause.” By way of reminder, ACCA imposes a 15‐year \\n\\nmandatory minimum sentence on defendants, such as Evans, who are convicted \\n\\nof violating § 924(g) and have already accrued three prior convictions for the \\n\\ncommission of violent felonies. The enumerated clause defines “violent felony” \\n\\nto include any crime punishable by imprisonment for more than a single year, that, \\n\\nin relevant part, “is burglary, arson, or extortion.” See 18 U.S.C. § 924(e)(2)(B)(ii). \\n\\n To determine whether a past conviction is for an enumerated offense under \\n\\nACCA, courts employ a “categorical approach.” Descamps v. United States, 570 \\n\\nU.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); see \\n\\nalso Mathis, 136 S.Ct. at 2248–51 (outlining the categorical approach and applying \\n\\nit to a state burglary conviction). This approach requires us to evaluate a prior \\n\\n\\n\\n\\n3 Evans concedes on appeal that his 1983 conviction for armed bank robbery in violation \\nof 18 U.S.C. § 2113(d) is a qualifying offense. \\n\\n\\n 8 \\n\\f \\nconviction “in terms of how the law defines the offense and not in terms of how \\n\\nan individual offender might have committed it on a particular occasion.” Begay \\n\\nv. United States, 553 U.S. 137, 141 (2008). To do so, we “compare the elements of \\n\\nthe statute forming the basis of the defendant’s conviction with the elements of the \\n\\n‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 570 U.S. \\n\\nat 257. \\n\\n In other words, we identify “the minimum criminal conduct necessary for \\n\\nconviction under a particular statute,” United States v. Acosta, 470 F.3d 132, 135 (2d \\n\\nCir. 2006) (per curiam), and determine whether that conduct falls within the scope \\n\\nof the “generic” definition of the crime. To show a predicate conviction is not a \\n\\nviolent felony, there must be “‘a realistic probability, not a theoretical possibility,’ \\n\\nthat the statute at issue could be applied to conduct that does not constitute” a \\n\\nviolent felony. United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (quoting Gonzales \\n\\nv. Duenas–Alvarez, 549 U.S. 183, 193 (2007)). \\n\\n As noted above, Evans was convicted in 1982 of second‐degree burglary \\n\\nunder North Carolina law. Although ACCA enumerates “burglary” as a “violent \\n\\nfelony,” pursuant to the categorical approach not every offense labeled as \\n\\n“burglary” under state law qualifies as a violent felony under ACCA. Taylor, 495 \\n\\n\\n\\n 9 \\n\\f \\nU.S. at 602; Mathis, 136 S.Ct. at 2250–51 (holding that where the parties agreed that \\n\\nIowa’s burglary statute “cover[ed] more conduct than generic burglary does” the \\n\\nstatute did not qualify as a violent felony under ACCA); see also Descamps, 570 U.S. \\n\\nat 282 (Alito J., dissenting) (“While the concept of a conviction for burglary might \\n\\nseem simple, things have not worked out that way . . . .”). To determine whether \\n\\na past conviction for burglary qualifies as a violent felony under ACCA, courts \\n\\nemploying the categorical approach accordingly “compare the elements of the \\n\\ncrime of conviction with the elements of the ‘generic’ version” of burglary. \\n\\nMathis, 136 S.Ct. at 2247. Thus, we focus here on whether the elements of North \\n\\nCarolina second‐degree burglary “are the same as, or narrower than, those of \\n\\ngeneric burglary.” Descamps, 570 U.S. at 282. We conclude that they are and \\n\\ntherefore that Evans’s conviction for second‐degree burglary under North \\n\\nCarolina law qualifies as a violent felony under ACCA. \\n\\n The Supreme Court has defined “generic burglary” as the “unlawful or \\n\\nunprivileged entry into, or remaining in, a building or other structure, with intent \\n\\nto commit a crime.” United States v. Stitt, 139 S.Ct. 399, 405–06 (2018) (quoting \\n\\nTaylor, 495 U.S. at 598). Thus, in order to qualify categorically, a state burglary \\n\\n\\n\\n\\n 10 \\n\\f \\noffense must require (1) the unlawful or unprivileged entry (2) into a dwelling (3) \\n\\nwith the intent to commit a crime. \\n\\n North Carolina defines common law burglary as “the breaking and entering \\n\\nof a dwelling house of another in the nighttime with the intent to commit a felony \\n\\ntherein.” State v. Williams, 333 S.E.2d 708, 720 (N.C. 1985). Moreover, State \\n\\nappellate court decisions clarify that an “unlawful or unprivileged entry” is also \\n\\nan essential element of common law burglary. United States v. Mack, 855 F.3d 581, \\n\\n586 (4th Cir. 2017) (citing State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992)); see also \\n\\nUnited States v. Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (noting that in employing \\n\\nthe categorical approach “[a] statute is not merely analyzed on its face; rather, we \\n\\nconsider the statutory language as it has been elucidated by the relevant state’s \\n\\ncourts”). \\n\\n Common law burglary occurs in the second‐degree in North Carolina when: \\n\\n committed in a dwelling house or sleeping apartment not actually \\n occupied by anyone at the time of the commission of the crime, or if \\n it be committed in any house within the curtilage of a dwelling house \\n or in any building not a dwelling house, but in which is a room used \\n as a sleeping apartment and not actually occupied as such at the time \\n of the commission of the crime. \\n\\nN.C. Gen. Stat. § 14‐51. Thus, in order to obtain a conviction for second‐degree \\n\\nburglary in North Carolina, the State must prove (i) the unlawful breaking and \\n\\n\\n 11 \\n\\f \\nentering (ii) in the nighttime (iii) into a dwelling house or sleeping apartment (iv) \\n\\nunoccupied at the time of the offense (v) with the intent to commit a felony therein. \\n\\n At first glance, second‐degree burglary under North Carolina law would \\n\\nnot appear to be broader than the generic definition of burglary. And indeed, the \\n\\nFourth Circuit has already concluded that first‐degree burglary in North Carolina \\n\\nsatisfies the generic definition of burglary for the purposes of applying the United \\n\\nStates Sentencing Guidelines (the “Guidelines”). See Mack, 855 F.3d at 586. \\n\\n Evans argues on appeal, however, that second‐degree burglary under North \\n\\nCarolina law is broader than the generic definition of burglary because it can \\n\\nencompass unlawful entry into mobile conveyances. He relies on a few North \\n\\nCarolina cases to support his argument. See, e.g., State v. Taylor, 428 S.E.2d 273, \\n\\n274 (N.C. Ct. App. 1993) (holding that an eight by twelve‐foot trailer parked on a \\n\\nfarm qualifies as a “dwelling” for the purpose of affirming a first‐degree burglary \\n\\nconviction); State v. Douglas, 277 S.E.2d 467, 470 (N.C. Ct. App. 1981), affm’d at 285 \\n\\nS.E.2d 802 (N.C. 1982) (defining “an unoccupied mobile home” as a “building” for \\n\\nthe purposes of N.C. Gen. State § 14‐54, a lesser included offense of second‐degree \\n\\nburglary). Evans points also to the Supreme Court’s decision in Taylor v. United \\n\\nStates, which, he argues, indicated that burglary of certain nontypical structures \\n\\n\\n\\n 12 \\n\\f \\nand vehicles falls outside the scope of generic burglary. See Taylor, 495 U.S. at 599 \\n\\n(noting that some states “define burglary more broadly” than generic burglary “by \\n\\nincluding places, such as automobiles and vending machines, other than \\n\\nbuildings”). \\n\\n The mobile home door left slightly ajar by Taylor, however, has been closed \\n\\nshut by the Supreme Court’s more recent opinion in Stitt, holding that “burglary \\n\\nof a nonpermanent or mobile structure that is adapted or used for overnight \\n\\naccommodation can qualify as ‘burglary’ under [ACCA].” Stitt, 139 S.Ct. at 404–\\n\\n06. The Court reasoned that such a definition satisfies the “generic” definition \\n\\nof burglary because it accords with state criminal codes at the time of ACCA’s \\n\\npassage. Id. at 406. Moreover, the Court noted, in passing ACCA, Congress \\n\\nwould have viewed burglary of a vehicle used for overnight accommodation as \\n\\ninherently dangerous because “[a]n offender who breaks into a mobile home, an \\n\\nRV, a camping tent, a vehicle, or another structure that is adapted for or \\n\\ncustomarily used for lodging runs a . . . risk of violent confrontation.” Id. \\n\\n Following Stitt, then, it is clear that second‐degree burglary under North \\n\\nCarolina law fits within the generic definition of burglary. North Carolina’s \\n\\nstatute and the case law surrounding it establish that second‐degree burglary \\n\\n\\n\\n 13 \\n\\f \\ncriminalizes only breaking and entering into a “dwelling house” or “sleeping \\n\\napartment.” N.C. Gen. Stat. § 14‐51. North Carolina courts have held that a \\n\\nmobile structure qualifies as such only if “the victim has made that trailer an area \\n\\nof repose, one which he can reasonably expect to be safe from criminal intrusion.” \\n\\nTaylor, 428 S.E.2d at 274. Thus, burglary under North Carolina law does not \\n\\nextend to the breaking and entering of a mere automobile, but instead aligns with \\n\\nthe Supreme Court’s definition of generic burglary, encompassing such unlawful \\n\\nentry of a vehicle that is “adapted for or customarily used for lodging.” Stitt, 139 \\n\\nS.Ct. at 406. \\n\\n In sum, even though a mobile home can qualify as a “dwelling house” under \\n\\nNorth Carolina law, such a definition, as Stitt makes clear, does not broaden the \\n\\nstatute beyond ACCA’s reach. We therefore hold that second‐degree burglary in \\n\\nviolation of N.C. Gen. State § 14‐51 qualifies as a violent felony under ACCA’s \\n\\nenumerated clause. \\n\\n II \\n\\n Evans next argues that his prior conviction for federal bank robbery in \\n\\nviolation of 18 U.S.C. § 2113(a) does not categorically qualify as a violent felony \\n\\n\\n\\n\\n 14 \\n\\f \\nunder ACCA’s elements clause. By way of reminder, ACCA’s elements clause \\n\\ndefines the term “violent felony” as “an offense that is a felony” and \\n\\n (i) has as an element the use, attempted use, or threatened use of \\n physical force against the person or property of another. \\n \\n8 U.S.C. § 924(e). The federal bank robbery statute provides: \\n \\n (a) Whoever, by force and violence, or by intimidation, takes, or \\n attempts to take, from the person or presence of another, or obtains \\n or attempts to obtain by extortion any property or money or any other \\n thing of value belonging to, or in the care, custody, control, \\n management, or possession of, any bank, credit union, or any savings \\n and loan association . . . \\n \\n Shall be fined under this title or imprisoned not more than twenty \\n years, or both. \\n \\n18 U.S.C. § 2113(a). \\n \\n To address Evans’s claim we again apply the “categorical approach.” \\n\\nStokeling, 139 S.Ct. at 554–55 (applying the categorical approach in holding that \\n\\nrobbery under Florida law qualifies as a predicate violent felony under ACCA’s \\n\\nelements clause). “This approach, familiar by now, involves two steps: first we \\n\\nidentify the elements of the predicate conviction by determining the minimum \\n\\ncriminal conduct a defendant must commit to be convicted; second, we determine \\n\\nwhether that minimum criminal conduct has as an element the use, attempted use, \\n\\nor threatened use of physical force.” United States v. Moore, 916 F.3d 231, 240 (2d \\n\\n\\n 15 \\n\\f \\nCir. 2019) (internal quotation marks omitted). Once more, we may not “consider \\n\\nthe facts of the offense conduct . . . under the rigidly structured regime of \\n\\ncategorical analysis.” Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018) \\n\\n(internal quotation marks and citation omitted). \\n\\n Evans argues that federal bank robbery does not categorically qualify as a \\n\\ncrime of violence under ACCA’s elements clause because the offense \\n\\n“encompasses ‘intimidation’ and ‘extortion’ as ‘means’ by which the offense can \\n\\nbe accomplished.” Br. Def‐Appellant at 30. First, we need not address Evans’s \\n\\nargument regarding bank robbery “by extortion” because we agree with the Ninth \\n\\nCircuit that § 2113(a) “contains at least two separate offenses, bank robbery and \\n\\nbank extortion.” United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018). Because \\n\\nEvans was convicted of bank robbery—indeed Congress amended the statute after \\n\\nhis conviction to include bank extortion, Criminal Law and Procedure Technical \\n\\nAmendments Act of 1986, Pub. L. No. 99‐646 § 68, 100 Stat. 3592, 3616 (amending \\n\\n18 U.S.C. § 2113(a))—we need not decide whether bank extortion qualifies as a \\n\\ncrime of violence. \\n\\n Evans’s argument therefore hinges entirely on whether bank robbery “by \\n\\nintimidation” is categorically a crime of violence. In answering this question “we \\n\\n\\n\\n 16 \\n\\f \\ndo not write on a blank slate.” Hill, 890 F.3d at 56. As we recently observed in \\n\\nconcluding that federal credit union robbery qualifies as a crime of violence for the \\n\\npurposes of 18 U.S.C. § 924(c), “this circuit, in a summary order, and our sister \\n\\ncircuits, in published opinions, have consistently held that federal bank robbery \\n\\nby intimidation is a crime of violence under the force clause of various sentence \\n\\nenhancement Guidelines and statutes.” 4 United States v. Hendricks, 2019 WL \\n\\n1560582 at *5 (2d Cir. Apr. 11, 2019) (quotation marks omitted). These decisions \\n\\nhave rejected the same argument that Evans advances here. 5 As the Fourth \\n\\n\\n4 18 U.S.C. § 924(c)(3)’s “force clause” defines the term “crime of violence” as “an offense \\nthat is a felony” and “has as an element the use, attempted use, or threatened use of \\nphysical force against the person or property of another.” Id. at § 924(c)(3)(A). We have \\nnoted the similarities between ACCA’s “elements clause” and § 924(c)(3)’s “force clause” \\nand have accordingly looked to cases analyzing ACCA’s elements clause to interpret the \\n“similarly . . . worded” force clause presented in 924(c)(3)(A)). Hill, 890 F.3d at 56. We \\nhave done the same with § 4B1.2 of the Guidelines, which defines “crime of violence” for \\npurposes of the “career offender” enhancement, U.S.S.G. § 4B1.1(a), as an offense that is \\na felony and that “has as an element the use, attempted use, or threatened use of physical \\nforce against the person of another,” U.S.S.G. § 4B1.2(a)(1); see also United States v. Walker, \\n595 F.3d 441, 443 n.1 (2d Cir. 2010) (“Given the substantial similarity between the \\n[ACCA’s] definition of ‘violent felony’ and the [Guidelines’] definition of ‘crime of \\nviolence,’ authority interpreting one phrase frequently is found to be persuasive in \\ninterpreting the other phrase.”) (alterations in original) (quoting United States v. Winter, \\n22 F.3d 15, 18 n.3 (1st Cir. 1994)). \\n \\n5 See United States v. Ellison, 866 F.3d 32, 39–40 (1st Cir. 2017) (holding that federal bank \\n\\nrobbery qualifies as a crime of violence under the Guidelines’ career offender “force \\nclause”); United States v. Brewer, 848 F.3d 711, 715–16 (5th Cir. 2017) (same); United States \\nv. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same); United States v. Wright, 957 F.2d 520, \\n521–22 (8th Cir. 1992) (same); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same); \\n\\n 17 \\n\\f \\nCircuit has persuasively argued, “[a] taking ‘by force and violence’ entails the use \\n\\nof physical force. Likewise, a taking ‘by intimidation’ involves the threat to use \\n\\nsuch force.” United States. v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (emphasis \\n\\nadded); see also United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) \\n\\n(“‘[I]ntimidation’ as used in the federal bank robbery statute requires that a person \\n\\ntake property in such a way that would put an ordinary, reasonable person in fear \\n\\nof bodily harm, which necessarily entails the threatened use of physical force.” \\n\\n(internal quotation marks omitted)); United States v. Jones, 932 F.2d 624, 625 (7th \\n\\nCir. 1991) (“There is no ‘space’ between ‘bank robbery’ and ‘crime of violence’ \\n\\n. . . because violence in the broad sense that includes a merely threatened use of \\n\\nforce is an element of every bank robbery.”). \\n\\n The decades‐old out of circuit case law on which Evans relies in arguing to \\n\\nthe contrary merely confirms that bank robbery by intimidation necessarily \\n\\ninvolves the threat to use force. Evans cites to instances where a defendant was \\n\\n\\nUnited States v. Gutierrez, 876 F.3d 1254, 1256–57 (9th Cir. 2017) (holding that federal bank \\nrobbery is a crime of violence under § 924(c)(3)(A)); United States. v. McNeal, 818 F.3d 141, \\n156–57 (4th Cir. 2016) (same); see also United States v. Horsting, 678 F. App’x 947, 949–50 \\n(11th Cir. 2017) (unpublished opinion) (concluding that federal bank robbery constitutes \\na “violent felony” under ACCA); Kucinski v. United States, No. 16‐cv‐201‐PB, 2016 WL \\n4444736, at *3 (D.N.H. Aug. 23, 2016) (noting that “a number of courts have rejected these \\nsame arguments, and determined—unanimously, it appears—that federal bank robbery \\nconstitutes a violent felony under the ACCA”). \\n\\n\\n 18 \\n\\f \\nconvicted of bank robbery after making an emphatic written demand for money, \\n\\nabsent explicitly threatening to use force or violence. See, e.g., United States v. \\n\\nHenson, 945 F.2d 430, 439 (1st Cir. 1991) (affirming bank robbery conviction where \\n\\nevidence demonstrated that defendant stood within two feet of the teller and \\n\\nhanded her a note directing her to “put fifties and twenties into an envelope \\n\\nnow!!”); United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (affirming bank \\n\\nrobbery conviction where evidence demonstrated that defendant told teller that \\n\\n“she had ‘three seconds’ to give him the money in the top drawer, and then \\n\\nrepeated this demand”). Contrary to Evans’s assertion, these examples establish \\n\\nthat where a defendant commits bank robbery without engaging in acts of force or \\n\\nviolence, he necessarily invokes “the threat to use . . . force.” McNeal, 818 F.3d at \\n\\n153 (emphasis added). And a defendant issuing such a threat does not need to \\n\\n“specif[y] . . . any particular means in order [for that threat] to be effective.” Hill, \\n\\n890 F.3d at 59. In other words, a demand to “give me all your money” carries \\n\\nwith it an implicit threat of force. Only in “backing down in the face of these \\n\\nthreats [do] the victims avoid physical force.” United States v. Pereira‐Gomez, 903 \\n\\nF.3d 155, 166 (2d Cir. 2018) (holding that attempted robbery in the second degree \\n\\n\\n\\n\\n 19 \\n\\f \\nunder New York law qualifies as a “crime of violence” under the Guidelines’ \\n\\n“force clause”). \\n\\n Evans also argues that “intimidation” for the purposes of § 2113(a) requires \\n\\nonly “putting the victim in fear of bodily harm,” United States v. McCormack, 829 \\n\\nF.2d 322, 324 (2d Cir. 1987), and that the threatened use of physical force is not, in \\n\\nfact, essential to placing a person in such fear. Evans contends—though he cites \\n\\nto no case law on the subject—that federal bank robbery could theoretically be \\n\\nachieved by threatening to “injure” a victim via an indirect means such as \\n\\n“poison.” Br. Def‐Appellant at 34. We reject this argument as well. \\n\\n First, for the purposes of applying the categorical approach, “hypotheticals \\n\\nare insufficient” because a defendant must show that there is a “realistic \\n\\nprobability” that federal bank robbery would reach the conduct Evans describes. \\n\\nHill, 890 F.3d at 58 (internal quotation marks omitted). The categorical approach \\n\\n“requires more than the application of legal imagination to a . . . statute’s \\n\\nlanguage.” Deunas‐Alvarez, 549 U.S. at 193. Evans has not unearthed an \\n\\n\\n\\n\\n 20 \\n\\f \\nexample of “bank robbery by poison,” so his attempt at applying “legal \\n\\nimagination” to the federal bank robbery statute must accordingly fail, id.6 \\n\\n Next, we have already rejected the argument that placing another in fear of \\n\\ninjury—even indirect injury—does not involve a threat or use of force, see Hill, 890 \\n\\nF.3d at 59–60, and we do so again today. As we held in Hill: \\n\\n [A] robbery still has as an element “the use, attempted use, or \\n threatened use of physical force against the person or property of \\n another,” notwithstanding that it is accomplished by threatening to \\n poison a victim, rather than to shoot him. Some threats do not require \\n specification of any particular means in order to be effective; yet they \\n still threaten some type of violence and the application of some force. \\n Consider: “That’s a nice car—would you like to be able to continue \\n driving it?” \\n \\nId. at 59. Evans suggests that our decision in Hill is not binding here because it \\n\\nrelied on the Supreme Court’s decision in Castleman, which interpreted the word \\n\\n“force” as employed in connection with a different statute, 18 U.S.C. § 922(g)(9) \\n\\n(defining a misdemeanor crime of violence). See United States v. Castleman, 572 \\n\\nU.S. 157, 168 (2014). But Hill applied Castleman’s reasoning to 18 U.S.C. § 924 (at \\n\\n\\n\\n6 Furthermore, McCormack, on which Evans relies, does not define “intimidation” for the \\npurposes of interpreting the federal bank robbery statute, as Evans contends. Instead, \\nthe decision merely recites the jury instructions given by the district court in that \\nparticular case. See McCormack, 829 F.2d at 324–25 (holding that it was “inconceivable \\nthat any juror, after finding that [the defendant] pointed a gun at the bank teller and \\nthreatened to blow her head off, would conclude that she was not intimidated”). \\n\\n\\n 21 \\n\\f \\nissue here), noting that there was “no persuasive reason why the same principle \\n\\nshould not apply to the construction of § 924(c)(3).” Hill, 890 F.3d at 59. We find \\n\\nCastleman’s reasoning equally persuasive in the present case.7 \\n\\n For the numerous reasons catalogued above, federal bank robbery “requires \\n\\nthe use or threat of force in order to overcome the victim’s resistance to the theft,” \\n\\nMoore, 916 F.3d at 242 ( citing Stokeling, 139 S.Ct. at 555), and therefore qualifies as \\n\\na “violent felony” under ACCA’s elements clause. \\n\\n * * * \\n\\n The aspirations behind the categorical approach first articulated in Taylor \\n\\nwere worthy ones. The Supreme Court hoped to remain faithful to “ACCA’s text \\n\\nand history[,] . . . avoid[] the Sixth Amendment concerns that would arise from \\n\\nsentencing courts’ making findings of fact that properly belong to juries[, a]nd . . . \\n\\navert[] ‘the practical difficulties and potential unfairness of a factual approach.’” \\n\\n\\n7 Recent Supreme Court guidance interpreting ACCA’s elements clause buttresses our \\nconclusion that federal bank robbery qualifies as a crime of violence under ACCA. The \\nSupreme Court has now established that threatened force need not be of a particular \\nstrength in order to fall within ACCA’s elements clause. Stokeling, 139 S.Ct. at 554. \\n“Force” is “violent” for the purposes of ACCA if it is sufficient to “overcome the victim’s \\nresistance . . . however slight that resistance might be.” Id. at 550. Thus, while Evans \\nattempts to distinguish between the use of “some force” or “indirect force” and the use of \\n“violent force,” his proffered distinctions must fail. Evans has not offered an example of \\nfederal bank robbery that does not involve force sufficient to “overcome the victim’s \\nresistance,” and this court has been unable to conceive of one. \\n\\n\\n 22 \\n\\f \\nDescamps, 570 U.S. at 267 (quoting Taylor, 495 U.S. at 600–01). But the laudable \\n\\ngoals motivating this approach have not been realized. See Mathis, 136 S.Ct. at 2258 \\n\\n(Kennedy J., concurring) (labeling the categorical approach “a system that each \\n\\nyear proves more unworkable”); Transcript of Oral Argument at 26, Stitt, 139 S.Ct. \\n\\n(No. 17‐765) (Alito J.) (characterizing the Court’s categorical approach \\n\\njurisprudence as “one royal mess”). \\n\\n In hindsight, judicial difficulties with the categorical approach might have \\n\\nbeen expected. The approach demands that federal courts employ an analysis \\n\\nfor which they are not constitutionally (or practically) suited. While cases such \\n\\nas Evans’s undoubtedly pose an actual case or controversy as the Constitution \\n\\ndemands, see U.S. Const. art. III § 2, cl. I, the categorical approach paradoxically \\n\\ninstructs courts resolving such cases to embark on an intellectual enterprise \\n\\ngrounded in the facts of other cases not before them, or even imagined scenarios. \\n\\nCourts are required to discern the outer reaches of countless federal and state \\n\\nstatutory provisions in an exercise most reminiscent of the law school classroom, \\n\\nand quite alien to courts’ well‐established role of adjudicating “concrete legal \\n\\nissues, presented in actual cases, not abstractions.” United Public Workers v. \\n\\nMitchell, 330 U.S. 75, 89 (1947) (quotation marks omitted). \\n\\n\\n\\n 23 \\n\\f \\n A solution lies with two sources: Congress, which can “amend[] the ACCA,” \\n\\nand the Supreme Court, which may “revisit its precedents in an appropriate case.” \\n\\nMathis, 136 S.Ct. at 2258 (Kennedy J., concurring) (calling for a reconsideration of \\n\\nthe categorical approach should “continued congressional inaction” persist). \\n\\nMindful of the competing textual, constitutional, and practical concerns \\n\\nunderpinning the categorical approach, we offer no opinion as to which of the \\n\\nmany proposed solutions—from a conduct‐specific approach 8 to eliminating \\n\\nmandatory minimums9—may be appropriate. We ask only that Congress or the \\n\\nSupreme Court take action. Until such time, the litany of ACCA challenges will \\n\\ncontinue, as will our efforts faithfully to apply the categorical approach, however \\n\\n\\n8 See, e.g., U.S. Sent’g Commission, Proposed Amendments to the Federal Sentencing \\nGuidelines (Dec. 13, 2018), http://www.ussc.gov/sites/default/files/pdf/news/press‐\\nreleases‐and‐news‐advisories/press‐releases/20181213_News‐Release.pdf (announcing \\nproposed amendment to the Guidelines that would “enable the sentencing courts to \\nconsider the conduct that formed the basis of the offense of conviction” in light of the \\n“extensive litigation” and “inconsistent sentencing outcomes” that have resulted from \\nthe categorical approach). \\n \\n9 See, e.g., Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L. REV. \\n\\n199, 221–22 (1993) (arguing that Congress should eliminate mandatory minimums in \\nfavor of greater reliance on discretionary Guidelines, which “can achieve a substantial \\ndegree of determinacy, predictability, uniformity and even severity . . . [while still] \\npreserv[ing] discretion . . . and allow[ing] sufficient flexibility to avoid the inequities and \\nprocess costs that rigid mandatories entail”); see also United States v. Booker, 543 U.S. 220, \\n223 (2005) (explaining that “advisory [sentencing] provisions that recommend[], rather \\nthan require[], the selection of particular sentences in response to differing sets of facts, \\n. . . would not implicate the Sixth Amendment”). \\n\\n 24 \\n\\f \\nawkward its demand that judges deciding cases act, instead, the part of law school \\n\\nprofessors spinning out hypotheticals. \\n\\n CONCLUSION \\n\\n We conclude that second‐degree burglary under North Carolina law \\n\\nqualifies categorically as a crime of violence under ACCA’s enumerated clause \\n\\nand that federal bank robbery qualifies categorically as a crime of violence under \\n\\nACCA’s elements clause. We therefore AFFIRM the judgment of the district court. \\n\\n\\n\\n\\n 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4394783/\", \"author_raw\": \"DEBRA ANN LIVINGSTON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WESLEY"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"CRAWFORD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WESLEY\": \", Circuit\", \"LIVINGSTON\": \", Circuit\", \"CRAWFORD\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4617530/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Evans\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2245‐cr \nUnited States v. Evans \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n August Term 2018 \n \n Argued: September 24, 2018 Decided: May 8, 2019 \n \n No. 17‐2245‐cr \n \n –––––––––––––––––––––––––––––––––––– \n \n UNITED STATES OF AMERICA \n \n Appellee, \n \n ‐v.‐ \n \n RONALD EVANS, \n \n Defendant‐Appellant, \n \n TASHINE KNIGHTER, \n \n Defendant. \n \n \n –––––––––––––––––––––––––––––––––––– \n \nBefore: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge. \n \n\n\n\n Judge Geoffrey W. Crawford, of the United States District Court for the District of \nVermont, sitting by designation. \n\f \n Defendant‐Appellant Ronald Evans appeals the district court’s June 16, 2017 \ndecision and order resentencing him to 180 months’ imprisonment following both \nhis guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. \n§§ 922(g)(1) and 924(e), and the subsequent grant of his habeas petition on the \nground that his original sentence was rendered retroactively invalid under Johnson \nv. United States, 135 S.Ct. 2551 (2015). Evans now claims that two of his ACCA \npredicates—second‐degree burglary under North Carolina law and federal bank \nrobbery—do not qualify as “violent felonies” under ACCA. We conclude that \nsecond‐degree burglary under North Carolina law qualifies categorically as a \nviolent felony under ACCA’s “enumerated clause.” We also conclude that \nfederal bank robbery qualifies categorically as a violent felony under ACCA’s \n“elements clause.” The district court therefore did not err in determining that \nEvans was subject to ACCA’s mandatory minimum term of imprisonment of 180 \nmonths. Accordingly, the judgment of the district court is AFFIRMED. \n \nFOR APPELLEE: MONICA J. RICHARDS, Assistant United \n States Attorney, for James P. Kennedy, Jr., \n United States Attorney for the Western \n District of New York, Buffalo, New York. \n \nFOR DEFENDANT‐APPELLANT: REETUPARNA DUTTA, Hodgson Russ LLP, \n Buffalo, New York. \n \n \n\nDEBRA ANN LIVINGSTON, Circuit Judge: \n\n The Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B), \n\nimposes a 15‐year mandatory minimum sentence if a defendant is convicted of \n\nbeing a felon in possession of a firearm following three prior convictions for a \n\n“violent felony.” This appeal presents the latest entry in a series of cases defining \n\noffenses that qualify as “violent felonies” for an enhanced sentence under ACCA. \n\n\n 2 \n\f \nSpecifically, this case calls upon us to answer two questions of first impression in \n\nthis Circuit: (1) whether second‐degree burglary in violation of North Carolina \n\nGeneral Statute § 14‐51 qualifies as a “violent felony” under ACCA’s “enumerated \n\nclause”; and (2) whether federal bank robbery in violation of 18 U.S.C. § 2113(a) \n\nqualifies as a “violent felony” under ACCA’s “elements clause.” For the reasons \n\noutlined below, we answer these two questions in the affirmative and hold that \n\nboth statutes are “violent felonies” within the ambit of ACCA. We therefore \n\nAFFIRM the July 14, 2017 judgment of the district court sentencing Defendant‐\n\nAppellant Ronald Evans pursuant to ACCA (Richard J. Arcara, Judge).1 \n\n\n\n\n1 Evans’s Notice of Appeal, filed on June 30, 2017, refers only to the district court’s \nsentence entered on June 16, 2017. The district court did not enter judgment until July \n14, 2017. We construe Evans’s Notice of Appeal as referring to the July 14th judgment. \nSee Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court announces a decision, \nsentence, or order—but before the entry of the judgment or order—is treated as filed on \nthe date of and after the entry.”); see also Manrique v. United States, 137 S.Ct. 1266, 1273 \n(2017) (construing Federal Rule of Appellate Procedure 4(b)(2)). \n\n\n 3 \n\f \n BACKGROUND \n\n I. Factual Background2 \n\n Defendant‐Appellant Ronald Evans (“Evans”) was charged by way of a \n\nseven‐count indictment with manufacturing and uttering counterfeit currency and \n\nconspiracy to manufacture and utter counterfeit currency, in violation of 18 U.S.C. \n\n§§ 471, 472, 473 and 2, and unlawful possession of a firearm by a felon, in violation \n\nof 18 U.S.C. §§ 922(g)(1) and 924(e). On July 26, 2011 Evans pled guilty to the \n\ncount of the indictment charging him with being a felon in possession of a firearm. \n\nACCA provides that a person who violates § 922(g) and who has three previous \n\nconvictions for a “violent felony” shall be imprisoned for a minimum of 15 years. \n\n18 U.S.C. § 924(e). ACCA defines “violent felony” as “any crime punishable by \n\nimprisonment for a term exceeding one year” that \n\n (i) has as an element the use, attempted use, or threatened use of \n physical force against the person of another; or \n \n (ii) is burglary, arson, or extortion, involves use of explosives, or \n otherwise involves conduct that presents a serious potential risk of \n physical injury to another. \n \n\n\n\n2 The factual background presented here is derived from undisputed facts from the \nparties’ submissions, uncontroverted testimony presented at sentencing, and Evans’s \npresentencing report. \n\n\n 4 \n\f \nId. at § 924(e)(2)(B). The first clause is referred to as ACCA’s “elements clause,” \n\nStokeling v. United States, 139 S.Ct. 544, 549 (2019), the first portion of the second \n\nclause—“is burglary, arson, or extortion”—as ACCA’s “enumerated clause,” id. at \n\n556, and the remainder as ACCA’s “residual clause,” Johnson v. United States, 135 \n\nS.Ct. 2551, 2556 (2015). Evans acknowledged in his written plea agreement that \n\nhe qualified as an armed career criminal based on three prior violent felony \n\nconvictions, subjecting him to a 15‐year mandatory minimum sentence. The \n\ndistrict court accordingly sentenced Evans to 180 months’ imprisonment on \n\nSeptember 25, 2012. \n\n On May 3, 2016 Evans filed a motion in conjunction with a previously filed \n\nhabeas petition, asserting that his ACCA status had been rendered retroactively \n\ninvalid under Johnson, 135 S.Ct. at 2257, which struck down ACCA’s residual \n\nclause under the void‐for‐vagueness doctrine. The district court granted Evans’s \n\nmotion, concluding that his prior sentence had indeed been rendered retroactively \n\ninvalid under Johnson because one of his three ACCA predicate convictions (for \n\nattempted burglary in the third‐degree in violation of N.Y. Penal Law § 140.20) \n\nhad qualified as a violent felony only under ACCA’s voided residual clause. The \n\ndistrict court, however, transferred the matter to the original sentencing judge for \n\n\n\n 5 \n\f \nresentencing, directing the court to consider whether any of Evans’s other prior \n\nconvictions could be substituted as ACCA predicates. \n\n At a resentencing hearing held on June 16, 2017, the district court \n\ndetermined that among Evans’s criminal history at least three offenses qualified \n\nas “violent felonies” under ACCA, such that Evans continued to face a mandatory \n\nminimum sentence of 15 years. Appendix (“A.”) 477–505. First, Evans was \n\nconvicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a). \n\nAccording to his presentencing report, this conviction occurred after he \n\napproached a teller window at a bank branch in Buffalo, New York, and then \n\nhanded the teller a blue tote bag and a demand note that read, “I have a gun fill \n\nbag.” Next, in 1983, Evans was convicted of federal armed bank robbery in \n\nviolation of 18 U.S.C. § 2113(d). The conduct underlying this conviction involved \n\nEvans and two co‐conspirators entering a bank in Buffalo wearing ski masks and \n\narmed with a pistol and a shotgun, yelling “Everyone get down, this is a hold up!” \n\nFinally, Evans was convicted in 2001 in North Carolina of second‐degree burglary \n\nin violation of N.C. Gen Stat. § 14‐51. According to his presentencing report, this \n\nconviction occurred after he and an accomplice broke into a home, confined and \n\nrestrained the victims therein, hit one victim with a hand gun and proceeded to \n\n\n\n 6 \n\f \nsteal property with a combined value of $30,000. The district court determined \n\nthat the first two offenses qualified categorically as violent felonies under ACCA’s \n\nelements clause, and that the final offense qualified categorically as a violent \n\nfelony under ACCA’s enumerated clause. Accordingly, the district court re‐\n\nsentenced Evans to 180 months’ imprisonment, the same sentence as was \n\noriginally imposed. This appeal followed. \n\n DISCUSSION \n\n Having laid out the facts surrounding Evans’s appeal, we now set them \n\naside in order to ascertain whether his predicate convictions qualify as crimes of \n\nviolence under ACCA. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) \n\n(“Facts . . . are mere real‐word things . . . . ACCA . . . cares not a whit about them.” \n\n(internal citation omitted)). On appeal we consider Evans’s claim that two of his \n\nACCA predicates—second‐degree burglary under North Carolina law and federal \n\n\n\n\n 7 \n\f \nbank robbery—do not categorically qualify as crimes of violence within the \n\nmeaning of 18 U.S.C. § 924(e).3 We conclude that they do. \n\n I \n\n We first consider whether Evans’s conviction for second‐degree burglary \n\nunder North Carolina law qualifies as a “crime of violence” under ACCA’s so‐\n\ncalled “enumerated clause.” By way of reminder, ACCA imposes a 15‐year \n\nmandatory minimum sentence on defendants, such as Evans, who are convicted \n\nof violating § 924(g) and have already accrued three prior convictions for the \n\ncommission of violent felonies. The enumerated clause defines “violent felony” \n\nto include any crime punishable by imprisonment for more than a single year, that, \n\nin relevant part, “is burglary, arson, or extortion.” See 18 U.S.C. § 924(e)(2)(B)(ii). \n\n To determine whether a past conviction is for an enumerated offense under \n\nACCA, courts employ a “categorical approach.” Descamps v. United States, 570 \n\nU.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); see \n\nalso Mathis, 136 S.Ct. at 2248–51 (outlining the categorical approach and applying \n\nit to a state burglary conviction). This approach requires us to evaluate a prior \n\n\n\n\n3 Evans concedes on appeal that his 1983 conviction for armed bank robbery in violation \nof 18 U.S.C. § 2113(d) is a qualifying offense. \n\n\n 8 \n\f \nconviction “in terms of how the law defines the offense and not in terms of how \n\nan individual offender might have committed it on a particular occasion.” Begay \n\nv. United States, 553 U.S. 137, 141 (2008). To do so, we “compare the elements of \n\nthe statute forming the basis of the defendant’s conviction with the elements of the \n\n‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 570 U.S. \n\nat 257. \n\n In other words, we identify “the minimum criminal conduct necessary for \n\nconviction under a particular statute,” United States v. Acosta, 470 F.3d 132, 135 (2d \n\nCir. 2006) (per curiam), and determine whether that conduct falls within the scope \n\nof the “generic” definition of the crime. To show a predicate conviction is not a \n\nviolent felony, there must be “‘a realistic probability, not a theoretical possibility,’ \n\nthat the statute at issue could be applied to conduct that does not constitute” a \n\nviolent felony. United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (quoting Gonzales \n\nv. Duenas–Alvarez, 549 U.S. 183, 193 (2007)). \n\n As noted above, Evans was convicted in 1982 of second‐degree burglary \n\nunder North Carolina law. Although ACCA enumerates “burglary” as a “violent \n\nfelony,” pursuant to the categorical approach not every offense labeled as \n\n“burglary” under state law qualifies as a violent felony under ACCA. Taylor, 495 \n\n\n\n 9 \n\f \nU.S. at 602; Mathis, 136 S.Ct. at 2250–51 (holding that where the parties agreed that \n\nIowa’s burglary statute “cover[ed] more conduct than generic burglary does” the \n\nstatute did not qualify as a violent felony under ACCA); see also Descamps, 570 U.S. \n\nat 282 (Alito J., dissenting) (“While the concept of a conviction for burglary might \n\nseem simple, things have not worked out that way . . . .”). To determine whether \n\na past conviction for burglary qualifies as a violent felony under ACCA, courts \n\nemploying the categorical approach accordingly “compare the elements of the \n\ncrime of conviction with the elements of the ‘generic’ version” of burglary. \n\nMathis, 136 S.Ct. at 2247. Thus, we focus here on whether the elements of North \n\nCarolina second‐degree burglary “are the same as, or narrower than, those of \n\ngeneric burglary.” Descamps, 570 U.S. at 282. We conclude that they are and \n\ntherefore that Evans’s conviction for second‐degree burglary under North \n\nCarolina law qualifies as a violent felony under ACCA. \n\n The Supreme Court has defined “generic burglary” as the “unlawful or \n\nunprivileged entry into, or remaining in, a building or other structure, with intent \n\nto commit a crime.” United States v. Stitt, 139 S.Ct. 399, 405–06 (2018) (quoting \n\nTaylor, 495 U.S. at 598). Thus, in order to qualify categorically, a state burglary \n\n\n\n\n 10 \n\f \noffense must require (1) the unlawful or unprivileged entry (2) into a dwelling (3) \n\nwith the intent to commit a crime. \n\n North Carolina defines common law burglary as “the breaking and entering \n\nof a dwelling house of another in the nighttime with the intent to commit a felony \n\ntherein.” State v. Williams, 333 S.E.2d 708, 720 (N.C. 1985). Moreover, State \n\nappellate court decisions clarify that an “unlawful or unprivileged entry” is also \n\nan essential element of common law burglary. United States v. Mack, 855 F.3d 581, \n\n586 (4th Cir. 2017) (citing State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992)); see also \n\nUnited States v. Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (noting that in employing \n\nthe categorical approach “[a] statute is not merely analyzed on its face; rather, we \n\nconsider the statutory language as it has been elucidated by the relevant state’s \n\ncourts”). \n\n Common law burglary occurs in the second‐degree in North Carolina when: \n\n committed in a dwelling house or sleeping apartment not actually \n occupied by anyone at the time of the commission of the crime, or if \n it be committed in any house within the curtilage of a dwelling house \n or in any building not a dwelling house, but in which is a room used \n as a sleeping apartment and not actually occupied as such at the time \n of the commission of the crime. \n\nN.C. Gen. Stat. § 14‐51. Thus, in order to obtain a conviction for second‐degree \n\nburglary in North Carolina, the State must prove (i) the unlawful breaking and \n\n\n 11 \n\f \nentering (ii) in the nighttime (iii) into a dwelling house or sleeping apartment (iv) \n\nunoccupied at the time of the offense (v) with the intent to commit a felony therein. \n\n At first glance, second‐degree burglary under North Carolina law would \n\nnot appear to be broader than the generic definition of burglary. And indeed, the \n\nFourth Circuit has already concluded that first‐degree burglary in North Carolina \n\nsatisfies the generic definition of burglary for the purposes of applying the United \n\nStates Sentencing Guidelines (the “Guidelines”). See Mack, 855 F.3d at 586. \n\n Evans argues on appeal, however, that second‐degree burglary under North \n\nCarolina law is broader than the generic definition of burglary because it can \n\nencompass unlawful entry into mobile conveyances. He relies on a few North \n\nCarolina cases to support his argument. See, e.g., State v. Taylor, 428 S.E.2d 273, \n\n274 (N.C. Ct. App. 1993) (holding that an eight by twelve‐foot trailer parked on a \n\nfarm qualifies as a “dwelling” for the purpose of affirming a first‐degree burglary \n\nconviction); State v. Douglas, 277 S.E.2d 467, 470 (N.C. Ct. App. 1981), affm’d at 285 \n\nS.E.2d 802 (N.C. 1982) (defining “an unoccupied mobile home” as a “building” for \n\nthe purposes of N.C. Gen. State § 14‐54, a lesser included offense of second‐degree \n\nburglary). Evans points also to the Supreme Court’s decision in Taylor v. United \n\nStates, which, he argues, indicated that burglary of certain nontypical structures \n\n\n\n 12 \n\f \nand vehicles falls outside the scope of generic burglary. See Taylor, 495 U.S. at 599 \n\n(noting that some states “define burglary more broadly” than generic burglary “by \n\nincluding places, such as automobiles and vending machines, other than \n\nbuildings”). \n\n The mobile home door left slightly ajar by Taylor, however, has been closed \n\nshut by the Supreme Court’s more recent opinion in Stitt, holding that “burglary \n\nof a nonpermanent or mobile structure that is adapted or used for overnight \n\naccommodation can qualify as ‘burglary’ under [ACCA].” Stitt, 139 S.Ct. at 404–\n\n06. The Court reasoned that such a definition satisfies the “generic” definition \n\nof burglary because it accords with state criminal codes at the time of ACCA’s \n\npassage. Id. at 406. Moreover, the Court noted, in passing ACCA, Congress \n\nwould have viewed burglary of a vehicle used for overnight accommodation as \n\ninherently dangerous because “[a]n offender who breaks into a mobile home, an \n\nRV, a camping tent, a vehicle, or another structure that is adapted for or \n\ncustomarily used for lodging runs a . . . risk of violent confrontation.” Id. \n\n Following Stitt, then, it is clear that second‐degree burglary under North \n\nCarolina law fits within the generic definition of burglary. North Carolina’s \n\nstatute and the case law surrounding it establish that second‐degree burglary \n\n\n\n 13 \n\f \ncriminalizes only breaking and entering into a “dwelling house” or “sleeping \n\napartment.” N.C. Gen. Stat. § 14‐51. North Carolina courts have held that a \n\nmobile structure qualifies as such only if “the victim has made that trailer an area \n\nof repose, one which he can reasonably expect to be safe from criminal intrusion.” \n\nTaylor, 428 S.E.2d at 274. Thus, burglary under North Carolina law does not \n\nextend to the breaking and entering of a mere automobile, but instead aligns with \n\nthe Supreme Court’s definition of generic burglary, encompassing such unlawful \n\nentry of a vehicle that is “adapted for or customarily used for lodging.” Stitt, 139 \n\nS.Ct. at 406. \n\n In sum, even though a mobile home can qualify as a “dwelling house” under \n\nNorth Carolina law, such a definition, as Stitt makes clear, does not broaden the \n\nstatute beyond ACCA’s reach. We therefore hold that second‐degree burglary in \n\nviolation of N.C. Gen. State § 14‐51 qualifies as a violent felony under ACCA’s \n\nenumerated clause. \n\n II \n\n Evans next argues that his prior conviction for federal bank robbery in \n\nviolation of 18 U.S.C. § 2113(a) does not categorically qualify as a violent felony \n\n\n\n\n 14 \n\f \nunder ACCA’s elements clause. By way of reminder, ACCA’s elements clause \n\ndefines the term “violent felony” as “an offense that is a felony” and \n\n (i) has as an element the use, attempted use, or threatened use of \n physical force against the person or property of another. \n \n8 U.S.C. § 924(e). The federal bank robbery statute provides: \n \n (a) Whoever, by force and violence, or by intimidation, takes, or \n attempts to take, from the person or presence of another, or obtains \n or attempts to obtain by extortion any property or money or any other \n thing of value belonging to, or in the care, custody, control, \n management, or possession of, any bank, credit union, or any savings \n and loan association . . . \n \n Shall be fined under this title or imprisoned not more than twenty \n years, or both. \n \n18 U.S.C. § 2113(a). \n \n To address Evans’s claim we again apply the “categorical approach.” \n\nStokeling, 139 S.Ct. at 554–55 (applying the categorical approach in holding that \n\nrobbery under Florida law qualifies as a predicate violent felony under ACCA’s \n\nelements clause). “This approach, familiar by now, involves two steps: first we \n\nidentify the elements of the predicate conviction by determining the minimum \n\ncriminal conduct a defendant must commit to be convicted; second, we determine \n\nwhether that minimum criminal conduct has as an element the use, attempted use, \n\nor threatened use of physical force.” United States v. Moore, 916 F.3d 231, 240 (2d \n\n\n 15 \n\f \nCir. 2019) (internal quotation marks omitted). Once more, we may not “consider \n\nthe facts of the offense conduct . . . under the rigidly structured regime of \n\ncategorical analysis.” Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018) \n\n(internal quotation marks and citation omitted). \n\n Evans argues that federal bank robbery does not categorically qualify as a \n\ncrime of violence under ACCA’s elements clause because the offense \n\n“encompasses ‘intimidation’ and ‘extortion’ as ‘means’ by which the offense can \n\nbe accomplished.” Br. Def‐Appellant at 30. First, we need not address Evans’s \n\nargument regarding bank robbery “by extortion” because we agree with the Ninth \n\nCircuit that § 2113(a) “contains at least two separate offenses, bank robbery and \n\nbank extortion.” United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018). Because \n\nEvans was convicted of bank robbery—indeed Congress amended the statute after \n\nhis conviction to include bank extortion, Criminal Law and Procedure Technical \n\nAmendments Act of 1986, Pub. L. No. 99‐646 § 68, 100 Stat. 3592, 3616 (amending \n\n18 U.S.C. § 2113(a))—we need not decide whether bank extortion qualifies as a \n\ncrime of violence. \n\n Evans’s argument therefore hinges entirely on whether bank robbery “by \n\nintimidation” is categorically a crime of violence. In answering this question “we \n\n\n\n 16 \n\f \ndo not write on a blank slate.” Hill, 890 F.3d at 56. As we recently observed in \n\nconcluding that federal credit union robbery qualifies as a crime of violence for the \n\npurposes of 18 U.S.C. § 924(c), “this circuit, in a summary order, and our sister \n\ncircuits, in published opinions, have consistently held that federal bank robbery \n\nby intimidation is a crime of violence under the force clause of various sentence \n\nenhancement Guidelines and statutes.” 4 United States v. Hendricks, 2019 WL \n\n1560582 at *5 (2d Cir. Apr. 11, 2019) (quotation marks omitted). These decisions \n\nhave rejected the same argument that Evans advances here. 5 As the Fourth \n\n\n4 18 U.S.C. § 924(c)(3)’s “force clause” defines the term “crime of violence” as “an offense \nthat is a felony” and “has as an element the use, attempted use, or threatened use of \nphysical force against the person or property of another.” Id. at § 924(c)(3)(A). We have \nnoted the similarities between ACCA’s “elements clause” and § 924(c)(3)’s “force clause” \nand have accordingly looked to cases analyzing ACCA’s elements clause to interpret the \n“similarly . . . worded” force clause presented in 924(c)(3)(A)). Hill, 890 F.3d at 56. We \nhave done the same with § 4B1.2 of the Guidelines, which defines “crime of violence” for \npurposes of the “career offender” enhancement, U.S.S.G. § 4B1.1(a), as an offense that is \na felony and that “has as an element the use, attempted use, or threatened use of physical \nforce against the person of another,” U.S.S.G. § 4B1.2(a)(1); see also United States v. Walker, \n595 F.3d 441, 443 n.1 (2d Cir. 2010) (“Given the substantial similarity between the \n[ACCA’s] definition of ‘violent felony’ and the [Guidelines’] definition of ‘crime of \nviolence,’ authority interpreting one phrase frequently is found to be persuasive in \ninterpreting the other phrase.”) (alterations in original) (quoting United States v. Winter, \n22 F.3d 15, 18 n.3 (1st Cir. 1994)). \n \n5 See United States v. Ellison, 866 F.3d 32, 39–40 (1st Cir. 2017) (holding that federal bank \n\nrobbery qualifies as a crime of violence under the Guidelines’ career offender “force \nclause”); United States v. Brewer, 848 F.3d 711, 715–16 (5th Cir. 2017) (same); United States \nv. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same); United States v. Wright, 957 F.2d 520, \n521–22 (8th Cir. 1992) (same); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same); \n\n 17 \n\f \nCircuit has persuasively argued, “[a] taking ‘by force and violence’ entails the use \n\nof physical force. Likewise, a taking ‘by intimidation’ involves the threat to use \n\nsuch force.” United States. v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (emphasis \n\nadded); see also United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) \n\n(“‘[I]ntimidation’ as used in the federal bank robbery statute requires that a person \n\ntake property in such a way that would put an ordinary, reasonable person in fear \n\nof bodily harm, which necessarily entails the threatened use of physical force.” \n\n(internal quotation marks omitted)); United States v. Jones, 932 F.2d 624, 625 (7th \n\nCir. 1991) (“There is no ‘space’ between ‘bank robbery’ and ‘crime of violence’ \n\n. . . because violence in the broad sense that includes a merely threatened use of \n\nforce is an element of every bank robbery.”). \n\n The decades‐old out of circuit case law on which Evans relies in arguing to \n\nthe contrary merely confirms that bank robbery by intimidation necessarily \n\ninvolves the threat to use force. Evans cites to instances where a defendant was \n\n\nUnited States v. Gutierrez, 876 F.3d 1254, 1256–57 (9th Cir. 2017) (holding that federal bank \nrobbery is a crime of violence under § 924(c)(3)(A)); United States. v. McNeal, 818 F.3d 141, \n156–57 (4th Cir. 2016) (same); see also United States v. Horsting, 678 F. App’x 947, 949–50 \n(11th Cir. 2017) (unpublished opinion) (concluding that federal bank robbery constitutes \na “violent felony” under ACCA); Kucinski v. United States, No. 16‐cv‐201‐PB, 2016 WL \n4444736, at *3 (D.N.H. Aug. 23, 2016) (noting that “a number of courts have rejected these \nsame arguments, and determined—unanimously, it appears—that federal bank robbery \nconstitutes a violent felony under the ACCA”). \n\n\n 18 \n\f \nconvicted of bank robbery after making an emphatic written demand for money, \n\nabsent explicitly threatening to use force or violence. See, e.g., United States v. \n\nHenson, 945 F.2d 430, 439 (1st Cir. 1991) (affirming bank robbery conviction where \n\nevidence demonstrated that defendant stood within two feet of the teller and \n\nhanded her a note directing her to “put fifties and twenties into an envelope \n\nnow!!”); United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (affirming bank \n\nrobbery conviction where evidence demonstrated that defendant told teller that \n\n“she had ‘three seconds’ to give him the money in the top drawer, and then \n\nrepeated this demand”). Contrary to Evans’s assertion, these examples establish \n\nthat where a defendant commits bank robbery without engaging in acts of force or \n\nviolence, he necessarily invokes “the threat to use . . . force.” McNeal, 818 F.3d at \n\n153 (emphasis added). And a defendant issuing such a threat does not need to \n\n“specif[y] . . . any particular means in order [for that threat] to be effective.” Hill, \n\n890 F.3d at 59. In other words, a demand to “give me all your money” carries \n\nwith it an implicit threat of force. Only in “backing down in the face of these \n\nthreats [do] the victims avoid physical force.” United States v. Pereira‐Gomez, 903 \n\nF.3d 155, 166 (2d Cir. 2018) (holding that attempted robbery in the second degree \n\n\n\n\n 19 \n\f \nunder New York law qualifies as a “crime of violence” under the Guidelines’ \n\n“force clause”). \n\n Evans also argues that “intimidation” for the purposes of § 2113(a) requires \n\nonly “putting the victim in fear of bodily harm,” United States v. McCormack, 829 \n\nF.2d 322, 324 (2d Cir. 1987), and that the threatened use of physical force is not, in \n\nfact, essential to placing a person in such fear. Evans contends—though he cites \n\nto no case law on the subject—that federal bank robbery could theoretically be \n\nachieved by threatening to “injure” a victim via an indirect means such as \n\n“poison.” Br. Def‐Appellant at 34. We reject this argument as well. \n\n First, for the purposes of applying the categorical approach, “hypotheticals \n\nare insufficient” because a defendant must show that there is a “realistic \n\nprobability” that federal bank robbery would reach the conduct Evans describes. \n\nHill, 890 F.3d at 58 (internal quotation marks omitted). The categorical approach \n\n“requires more than the application of legal imagination to a . . . statute’s \n\nlanguage.” Deunas‐Alvarez, 549 U.S. at 193. Evans has not unearthed an \n\n\n\n\n 20 \n\f \nexample of “bank robbery by poison,” so his attempt at applying “legal \n\nimagination” to the federal bank robbery statute must accordingly fail, id.6 \n\n Next, we have already rejected the argument that placing another in fear of \n\ninjury—even indirect injury—does not involve a threat or use of force, see Hill, 890 \n\nF.3d at 59–60, and we do so again today. As we held in Hill: \n\n [A] robbery still has as an element “the use, attempted use, or \n threatened use of physical force against the person or property of \n another,” notwithstanding that it is accomplished by threatening to \n poison a victim, rather than to shoot him. Some threats do not require \n specification of any particular means in order to be effective; yet they \n still threaten some type of violence and the application of some force. \n Consider: “That’s a nice car—would you like to be able to continue \n driving it?” \n \nId. at 59. Evans suggests that our decision in Hill is not binding here because it \n\nrelied on the Supreme Court’s decision in Castleman, which interpreted the word \n\n“force” as employed in connection with a different statute, 18 U.S.C. § 922(g)(9) \n\n(defining a misdemeanor crime of violence). See United States v. Castleman, 572 \n\nU.S. 157, 168 (2014). But Hill applied Castleman’s reasoning to 18 U.S.C. § 924 (at \n\n\n\n6 Furthermore, McCormack, on which Evans relies, does not define “intimidation” for the \npurposes of interpreting the federal bank robbery statute, as Evans contends. Instead, \nthe decision merely recites the jury instructions given by the district court in that \nparticular case. See McCormack, 829 F.2d at 324–25 (holding that it was “inconceivable \nthat any juror, after finding that [the defendant] pointed a gun at the bank teller and \nthreatened to blow her head off, would conclude that she was not intimidated”). \n\n\n 21 \n\f \nissue here), noting that there was “no persuasive reason why the same principle \n\nshould not apply to the construction of § 924(c)(3).” Hill, 890 F.3d at 59. We find \n\nCastleman’s reasoning equally persuasive in the present case.7 \n\n For the numerous reasons catalogued above, federal bank robbery “requires \n\nthe use or threat of force in order to overcome the victim’s resistance to the theft,” \n\nMoore, 916 F.3d at 242 ( citing Stokeling, 139 S.Ct. at 555), and therefore qualifies as \n\na “violent felony” under ACCA’s elements clause. \n\n * * * \n\n The aspirations behind the categorical approach first articulated in Taylor \n\nwere worthy ones. The Supreme Court hoped to remain faithful to “ACCA’s text \n\nand history[,] . . . avoid[] the Sixth Amendment concerns that would arise from \n\nsentencing courts’ making findings of fact that properly belong to juries[, a]nd . . . \n\navert[] ‘the practical difficulties and potential unfairness of a factual approach.’” \n\n\n7 Recent Supreme Court guidance interpreting ACCA’s elements clause buttresses our \nconclusion that federal bank robbery qualifies as a crime of violence under ACCA. The \nSupreme Court has now established that threatened force need not be of a particular \nstrength in order to fall within ACCA’s elements clause. Stokeling, 139 S.Ct. at 554. \n“Force” is “violent” for the purposes of ACCA if it is sufficient to “overcome the victim’s \nresistance . . . however slight that resistance might be.” Id. at 550. Thus, while Evans \nattempts to distinguish between the use of “some force” or “indirect force” and the use of \n“violent force,” his proffered distinctions must fail. Evans has not offered an example of \nfederal bank robbery that does not involve force sufficient to “overcome the victim’s \nresistance,” and this court has been unable to conceive of one. \n\n\n 22 \n\f \nDescamps, 570 U.S. at 267 (quoting Taylor, 495 U.S. at 600–01). But the laudable \n\ngoals motivating this approach have not been realized. See Mathis, 136 S.Ct. at 2258 \n\n(Kennedy J., concurring) (labeling the categorical approach “a system that each \n\nyear proves more unworkable”); Transcript of Oral Argument at 26, Stitt, 139 S.Ct. \n\n(No. 17‐765) (Alito J.) (characterizing the Court’s categorical approach \n\njurisprudence as “one royal mess”). \n\n In hindsight, judicial difficulties with the categorical approach might have \n\nbeen expected. The approach demands that federal courts employ an analysis \n\nfor which they are not constitutionally (or practically) suited. While cases such \n\nas Evans’s undoubtedly pose an actual case or controversy as the Constitution \n\ndemands, see U.S. Const. art. III § 2, cl. I, the categorical approach paradoxically \n\ninstructs courts resolving such cases to embark on an intellectual enterprise \n\ngrounded in the facts of other cases not before them, or even imagined scenarios. \n\nCourts are required to discern the outer reaches of countless federal and state \n\nstatutory provisions in an exercise most reminiscent of the law school classroom, \n\nand quite alien to courts’ well‐established role of adjudicating “concrete legal \n\nissues, presented in actual cases, not abstractions.” United Public Workers v. \n\nMitchell, 330 U.S. 75, 89 (1947) (quotation marks omitted). \n\n\n\n 23 \n\f \n A solution lies with two sources: Congress, which can “amend[] the ACCA,” \n\nand the Supreme Court, which may “revisit its precedents in an appropriate case.” \n\nMathis, 136 S.Ct. at 2258 (Kennedy J., concurring) (calling for a reconsideration of \n\nthe categorical approach should “continued congressional inaction” persist). \n\nMindful of the competing textual, constitutional, and practical concerns \n\nunderpinning the categorical approach, we offer no opinion as to which of the \n\nmany proposed solutions—from a conduct‐specific approach 8 to eliminating \n\nmandatory minimums9—may be appropriate. We ask only that Congress or the \n\nSupreme Court take action. Until such time, the litany of ACCA challenges will \n\ncontinue, as will our efforts faithfully to apply the categorical approach, however \n\n\n8 See, e.g., U.S. Sent’g Commission, Proposed Amendments to the Federal Sentencing \nGuidelines (Dec. 13, 2018), http://www.ussc.gov/sites/default/files/pdf/news/press‐\nreleases‐and‐news‐advisories/press‐releases/20181213_News‐Release.pdf (announcing \nproposed amendment to the Guidelines that would “enable the sentencing courts to \nconsider the conduct that formed the basis of the offense of conviction” in light of the \n“extensive litigation” and “inconsistent sentencing outcomes” that have resulted from \nthe categorical approach). \n \n9 See, e.g., Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L. REV. \n\n199, 221–22 (1993) (arguing that Congress should eliminate mandatory minimums in \nfavor of greater reliance on discretionary Guidelines, which “can achieve a substantial \ndegree of determinacy, predictability, uniformity and even severity . . . [while still] \npreserv[ing] discretion . . . and allow[ing] sufficient flexibility to avoid the inequities and \nprocess costs that rigid mandatories entail”); see also United States v. Booker, 543 U.S. 220, \n223 (2005) (explaining that “advisory [sentencing] provisions that recommend[], rather \nthan require[], the selection of particular sentences in response to differing sets of facts, \n. . . would not implicate the Sixth Amendment”). \n\n 24 \n\f \nawkward its demand that judges deciding cases act, instead, the part of law school \n\nprofessors spinning out hypotheticals. \n\n CONCLUSION \n\n We conclude that second‐degree burglary under North Carolina law \n\nqualifies categorically as a crime of violence under ACCA’s enumerated clause \n\nand that federal bank robbery qualifies categorically as a crime of violence under \n\nACCA’s elements clause. We therefore AFFIRM the judgment of the district court. \n\n\n\n\n 25\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Evans\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2245‐cr \\nUnited States v. Evans \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n August Term 2018 \\n \\n Argued: September 24, 2018 Decided: May 8, 2019 \\n \\n No. 17‐2245‐cr \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\n UNITED STATES OF AMERICA \\n \\n Appellee, \\n \\n ‐v.‐ \\n \\n RONALD EVANS, \\n \\n Defendant‐Appellant, \\n \\n TASHINE KNIGHTER, \\n \\n Defendant. \\n \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\nBefore: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge. \\n \\n\\n\\n\\n Judge Geoffrey W. Crawford, of the United States District Court for the District of \\nVermont, sitting by designation. \\n\\f \\n Defendant‐Appellant Ronald Evans appeals the district court’s June 16, 2017 \\ndecision and order resentencing him to 180 months’ imprisonment following both \\nhis guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. \\n§§ 922(g)(1) and 924(e), and the subsequent grant of his habeas petition on the \\nground that his original sentence was rendered retroactively invalid under Johnson \\nv. United States, 135 S.Ct. 2551 (2015). Evans now claims that two of his ACCA \\npredicates—second‐degree burglary under North Carolina law and federal bank \\nrobbery—do not qualify as “violent felonies” under ACCA. We conclude that \\nsecond‐degree burglary under North Carolina law qualifies categorically as a \\nviolent felony under ACCA’s “enumerated clause.” We also conclude that \\nfederal bank robbery qualifies categorically as a violent felony under ACCA’s \\n“elements clause.” The district court therefore did not err in determining that \\nEvans was subject to ACCA’s mandatory minimum term of imprisonment of 180 \\nmonths. Accordingly, the judgment of the district court is AFFIRMED. \\n \\nFOR APPELLEE: MONICA J. RICHARDS, Assistant United \\n States Attorney, for James P. Kennedy, Jr., \\n United States Attorney for the Western \\n District of New York, Buffalo, New York. \\n \\nFOR DEFENDANT‐APPELLANT: REETUPARNA DUTTA, Hodgson Russ LLP, \\n Buffalo, New York. \\n \\n \\n\\nDEBRA ANN LIVINGSTON, Circuit Judge: \\n\\n The Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B), \\n\\nimposes a 15‐year mandatory minimum sentence if a defendant is convicted of \\n\\nbeing a felon in possession of a firearm following three prior convictions for a \\n\\n“violent felony.” This appeal presents the latest entry in a series of cases defining \\n\\noffenses that qualify as “violent felonies” for an enhanced sentence under ACCA. \\n\\n\\n 2 \\n\\f \\nSpecifically, this case calls upon us to answer two questions of first impression in \\n\\nthis Circuit: (1) whether second‐degree burglary in violation of North Carolina \\n\\nGeneral Statute § 14‐51 qualifies as a “violent felony” under ACCA’s “enumerated \\n\\nclause”; and (2) whether federal bank robbery in violation of 18 U.S.C. § 2113(a) \\n\\nqualifies as a “violent felony” under ACCA’s “elements clause.” For the reasons \\n\\noutlined below, we answer these two questions in the affirmative and hold that \\n\\nboth statutes are “violent felonies” within the ambit of ACCA. We therefore \\n\\nAFFIRM the July 14, 2017 judgment of the district court sentencing Defendant‐\\n\\nAppellant Ronald Evans pursuant to ACCA (Richard J. Arcara, Judge).1 \\n\\n\\n\\n\\n1 Evans’s Notice of Appeal, filed on June 30, 2017, refers only to the district court’s \\nsentence entered on June 16, 2017. The district court did not enter judgment until July \\n14, 2017. We construe Evans’s Notice of Appeal as referring to the July 14th judgment. \\nSee Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court announces a decision, \\nsentence, or order—but before the entry of the judgment or order—is treated as filed on \\nthe date of and after the entry.”); see also Manrique v. United States, 137 S.Ct. 1266, 1273 \\n(2017) (construing Federal Rule of Appellate Procedure 4(b)(2)). \\n\\n\\n 3 \\n\\f \\n BACKGROUND \\n\\n I. Factual Background2 \\n\\n Defendant‐Appellant Ronald Evans (“Evans”) was charged by way of a \\n\\nseven‐count indictment with manufacturing and uttering counterfeit currency and \\n\\nconspiracy to manufacture and utter counterfeit currency, in violation of 18 U.S.C. \\n\\n§§ 471, 472, 473 and 2, and unlawful possession of a firearm by a felon, in violation \\n\\nof 18 U.S.C. §§ 922(g)(1) and 924(e). On July 26, 2011 Evans pled guilty to the \\n\\ncount of the indictment charging him with being a felon in possession of a firearm. \\n\\nACCA provides that a person who violates § 922(g) and who has three previous \\n\\nconvictions for a “violent felony” shall be imprisoned for a minimum of 15 years. \\n\\n18 U.S.C. § 924(e). ACCA defines “violent felony” as “any crime punishable by \\n\\nimprisonment for a term exceeding one year” that \\n\\n (i) has as an element the use, attempted use, or threatened use of \\n physical force against the person of another; or \\n \\n (ii) is burglary, arson, or extortion, involves use of explosives, or \\n otherwise involves conduct that presents a serious potential risk of \\n physical injury to another. \\n \\n\\n\\n\\n2 The factual background presented here is derived from undisputed facts from the \\nparties’ submissions, uncontroverted testimony presented at sentencing, and Evans’s \\npresentencing report. \\n\\n\\n 4 \\n\\f \\nId. at § 924(e)(2)(B). The first clause is referred to as ACCA’s “elements clause,” \\n\\nStokeling v. United States, 139 S.Ct. 544, 549 (2019), the first portion of the second \\n\\nclause—“is burglary, arson, or extortion”—as ACCA’s “enumerated clause,” id. at \\n\\n556, and the remainder as ACCA’s “residual clause,” Johnson v. United States, 135 \\n\\nS.Ct. 2551, 2556 (2015). Evans acknowledged in his written plea agreement that \\n\\nhe qualified as an armed career criminal based on three prior violent felony \\n\\nconvictions, subjecting him to a 15‐year mandatory minimum sentence. The \\n\\ndistrict court accordingly sentenced Evans to 180 months’ imprisonment on \\n\\nSeptember 25, 2012. \\n\\n On May 3, 2016 Evans filed a motion in conjunction with a previously filed \\n\\nhabeas petition, asserting that his ACCA status had been rendered retroactively \\n\\ninvalid under Johnson, 135 S.Ct. at 2257, which struck down ACCA’s residual \\n\\nclause under the void‐for‐vagueness doctrine. The district court granted Evans’s \\n\\nmotion, concluding that his prior sentence had indeed been rendered retroactively \\n\\ninvalid under Johnson because one of his three ACCA predicate convictions (for \\n\\nattempted burglary in the third‐degree in violation of N.Y. Penal Law § 140.20) \\n\\nhad qualified as a violent felony only under ACCA’s voided residual clause. The \\n\\ndistrict court, however, transferred the matter to the original sentencing judge for \\n\\n\\n\\n 5 \\n\\f \\nresentencing, directing the court to consider whether any of Evans’s other prior \\n\\nconvictions could be substituted as ACCA predicates. \\n\\n At a resentencing hearing held on June 16, 2017, the district court \\n\\ndetermined that among Evans’s criminal history at least three offenses qualified \\n\\nas “violent felonies” under ACCA, such that Evans continued to face a mandatory \\n\\nminimum sentence of 15 years. Appendix (“A.”) 477–505. First, Evans was \\n\\nconvicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a). \\n\\nAccording to his presentencing report, this conviction occurred after he \\n\\napproached a teller window at a bank branch in Buffalo, New York, and then \\n\\nhanded the teller a blue tote bag and a demand note that read, “I have a gun fill \\n\\nbag.” Next, in 1983, Evans was convicted of federal armed bank robbery in \\n\\nviolation of 18 U.S.C. § 2113(d). The conduct underlying this conviction involved \\n\\nEvans and two co‐conspirators entering a bank in Buffalo wearing ski masks and \\n\\narmed with a pistol and a shotgun, yelling “Everyone get down, this is a hold up!” \\n\\nFinally, Evans was convicted in 2001 in North Carolina of second‐degree burglary \\n\\nin violation of N.C. Gen Stat. § 14‐51. According to his presentencing report, this \\n\\nconviction occurred after he and an accomplice broke into a home, confined and \\n\\nrestrained the victims therein, hit one victim with a hand gun and proceeded to \\n\\n\\n\\n 6 \\n\\f \\nsteal property with a combined value of $30,000. The district court determined \\n\\nthat the first two offenses qualified categorically as violent felonies under ACCA’s \\n\\nelements clause, and that the final offense qualified categorically as a violent \\n\\nfelony under ACCA’s enumerated clause. Accordingly, the district court re‐\\n\\nsentenced Evans to 180 months’ imprisonment, the same sentence as was \\n\\noriginally imposed. This appeal followed. \\n\\n DISCUSSION \\n\\n Having laid out the facts surrounding Evans’s appeal, we now set them \\n\\naside in order to ascertain whether his predicate convictions qualify as crimes of \\n\\nviolence under ACCA. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) \\n\\n(“Facts . . . are mere real‐word things . . . . ACCA . . . cares not a whit about them.” \\n\\n(internal citation omitted)). On appeal we consider Evans’s claim that two of his \\n\\nACCA predicates—second‐degree burglary under North Carolina law and federal \\n\\n\\n\\n\\n 7 \\n\\f \\nbank robbery—do not categorically qualify as crimes of violence within the \\n\\nmeaning of 18 U.S.C. § 924(e).3 We conclude that they do. \\n\\n I \\n\\n We first consider whether Evans’s conviction for second‐degree burglary \\n\\nunder North Carolina law qualifies as a “crime of violence” under ACCA’s so‐\\n\\ncalled “enumerated clause.” By way of reminder, ACCA imposes a 15‐year \\n\\nmandatory minimum sentence on defendants, such as Evans, who are convicted \\n\\nof violating § 924(g) and have already accrued three prior convictions for the \\n\\ncommission of violent felonies. The enumerated clause defines “violent felony” \\n\\nto include any crime punishable by imprisonment for more than a single year, that, \\n\\nin relevant part, “is burglary, arson, or extortion.” See 18 U.S.C. § 924(e)(2)(B)(ii). \\n\\n To determine whether a past conviction is for an enumerated offense under \\n\\nACCA, courts employ a “categorical approach.” Descamps v. United States, 570 \\n\\nU.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); see \\n\\nalso Mathis, 136 S.Ct. at 2248–51 (outlining the categorical approach and applying \\n\\nit to a state burglary conviction). This approach requires us to evaluate a prior \\n\\n\\n\\n\\n3 Evans concedes on appeal that his 1983 conviction for armed bank robbery in violation \\nof 18 U.S.C. § 2113(d) is a qualifying offense. \\n\\n\\n 8 \\n\\f \\nconviction “in terms of how the law defines the offense and not in terms of how \\n\\nan individual offender might have committed it on a particular occasion.” Begay \\n\\nv. United States, 553 U.S. 137, 141 (2008). To do so, we “compare the elements of \\n\\nthe statute forming the basis of the defendant’s conviction with the elements of the \\n\\n‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 570 U.S. \\n\\nat 257. \\n\\n In other words, we identify “the minimum criminal conduct necessary for \\n\\nconviction under a particular statute,” United States v. Acosta, 470 F.3d 132, 135 (2d \\n\\nCir. 2006) (per curiam), and determine whether that conduct falls within the scope \\n\\nof the “generic” definition of the crime. To show a predicate conviction is not a \\n\\nviolent felony, there must be “‘a realistic probability, not a theoretical possibility,’ \\n\\nthat the statute at issue could be applied to conduct that does not constitute” a \\n\\nviolent felony. United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (quoting Gonzales \\n\\nv. Duenas–Alvarez, 549 U.S. 183, 193 (2007)). \\n\\n As noted above, Evans was convicted in 1982 of second‐degree burglary \\n\\nunder North Carolina law. Although ACCA enumerates “burglary” as a “violent \\n\\nfelony,” pursuant to the categorical approach not every offense labeled as \\n\\n“burglary” under state law qualifies as a violent felony under ACCA. Taylor, 495 \\n\\n\\n\\n 9 \\n\\f \\nU.S. at 602; Mathis, 136 S.Ct. at 2250–51 (holding that where the parties agreed that \\n\\nIowa’s burglary statute “cover[ed] more conduct than generic burglary does” the \\n\\nstatute did not qualify as a violent felony under ACCA); see also Descamps, 570 U.S. \\n\\nat 282 (Alito J., dissenting) (“While the concept of a conviction for burglary might \\n\\nseem simple, things have not worked out that way . . . .”). To determine whether \\n\\na past conviction for burglary qualifies as a violent felony under ACCA, courts \\n\\nemploying the categorical approach accordingly “compare the elements of the \\n\\ncrime of conviction with the elements of the ‘generic’ version” of burglary. \\n\\nMathis, 136 S.Ct. at 2247. Thus, we focus here on whether the elements of North \\n\\nCarolina second‐degree burglary “are the same as, or narrower than, those of \\n\\ngeneric burglary.” Descamps, 570 U.S. at 282. We conclude that they are and \\n\\ntherefore that Evans’s conviction for second‐degree burglary under North \\n\\nCarolina law qualifies as a violent felony under ACCA. \\n\\n The Supreme Court has defined “generic burglary” as the “unlawful or \\n\\nunprivileged entry into, or remaining in, a building or other structure, with intent \\n\\nto commit a crime.” United States v. Stitt, 139 S.Ct. 399, 405–06 (2018) (quoting \\n\\nTaylor, 495 U.S. at 598). Thus, in order to qualify categorically, a state burglary \\n\\n\\n\\n\\n 10 \\n\\f \\noffense must require (1) the unlawful or unprivileged entry (2) into a dwelling (3) \\n\\nwith the intent to commit a crime. \\n\\n North Carolina defines common law burglary as “the breaking and entering \\n\\nof a dwelling house of another in the nighttime with the intent to commit a felony \\n\\ntherein.” State v. Williams, 333 S.E.2d 708, 720 (N.C. 1985). Moreover, State \\n\\nappellate court decisions clarify that an “unlawful or unprivileged entry” is also \\n\\nan essential element of common law burglary. United States v. Mack, 855 F.3d 581, \\n\\n586 (4th Cir. 2017) (citing State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992)); see also \\n\\nUnited States v. Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (noting that in employing \\n\\nthe categorical approach “[a] statute is not merely analyzed on its face; rather, we \\n\\nconsider the statutory language as it has been elucidated by the relevant state’s \\n\\ncourts”). \\n\\n Common law burglary occurs in the second‐degree in North Carolina when: \\n\\n committed in a dwelling house or sleeping apartment not actually \\n occupied by anyone at the time of the commission of the crime, or if \\n it be committed in any house within the curtilage of a dwelling house \\n or in any building not a dwelling house, but in which is a room used \\n as a sleeping apartment and not actually occupied as such at the time \\n of the commission of the crime. \\n\\nN.C. Gen. Stat. § 14‐51. Thus, in order to obtain a conviction for second‐degree \\n\\nburglary in North Carolina, the State must prove (i) the unlawful breaking and \\n\\n\\n 11 \\n\\f \\nentering (ii) in the nighttime (iii) into a dwelling house or sleeping apartment (iv) \\n\\nunoccupied at the time of the offense (v) with the intent to commit a felony therein. \\n\\n At first glance, second‐degree burglary under North Carolina law would \\n\\nnot appear to be broader than the generic definition of burglary. And indeed, the \\n\\nFourth Circuit has already concluded that first‐degree burglary in North Carolina \\n\\nsatisfies the generic definition of burglary for the purposes of applying the United \\n\\nStates Sentencing Guidelines (the “Guidelines”). See Mack, 855 F.3d at 586. \\n\\n Evans argues on appeal, however, that second‐degree burglary under North \\n\\nCarolina law is broader than the generic definition of burglary because it can \\n\\nencompass unlawful entry into mobile conveyances. He relies on a few North \\n\\nCarolina cases to support his argument. See, e.g., State v. Taylor, 428 S.E.2d 273, \\n\\n274 (N.C. Ct. App. 1993) (holding that an eight by twelve‐foot trailer parked on a \\n\\nfarm qualifies as a “dwelling” for the purpose of affirming a first‐degree burglary \\n\\nconviction); State v. Douglas, 277 S.E.2d 467, 470 (N.C. Ct. App. 1981), affm’d at 285 \\n\\nS.E.2d 802 (N.C. 1982) (defining “an unoccupied mobile home” as a “building” for \\n\\nthe purposes of N.C. Gen. State § 14‐54, a lesser included offense of second‐degree \\n\\nburglary). Evans points also to the Supreme Court’s decision in Taylor v. United \\n\\nStates, which, he argues, indicated that burglary of certain nontypical structures \\n\\n\\n\\n 12 \\n\\f \\nand vehicles falls outside the scope of generic burglary. See Taylor, 495 U.S. at 599 \\n\\n(noting that some states “define burglary more broadly” than generic burglary “by \\n\\nincluding places, such as automobiles and vending machines, other than \\n\\nbuildings”). \\n\\n The mobile home door left slightly ajar by Taylor, however, has been closed \\n\\nshut by the Supreme Court’s more recent opinion in Stitt, holding that “burglary \\n\\nof a nonpermanent or mobile structure that is adapted or used for overnight \\n\\naccommodation can qualify as ‘burglary’ under [ACCA].” Stitt, 139 S.Ct. at 404–\\n\\n06. The Court reasoned that such a definition satisfies the “generic” definition \\n\\nof burglary because it accords with state criminal codes at the time of ACCA’s \\n\\npassage. Id. at 406. Moreover, the Court noted, in passing ACCA, Congress \\n\\nwould have viewed burglary of a vehicle used for overnight accommodation as \\n\\ninherently dangerous because “[a]n offender who breaks into a mobile home, an \\n\\nRV, a camping tent, a vehicle, or another structure that is adapted for or \\n\\ncustomarily used for lodging runs a . . . risk of violent confrontation.” Id. \\n\\n Following Stitt, then, it is clear that second‐degree burglary under North \\n\\nCarolina law fits within the generic definition of burglary. North Carolina’s \\n\\nstatute and the case law surrounding it establish that second‐degree burglary \\n\\n\\n\\n 13 \\n\\f \\ncriminalizes only breaking and entering into a “dwelling house” or “sleeping \\n\\napartment.” N.C. Gen. Stat. § 14‐51. North Carolina courts have held that a \\n\\nmobile structure qualifies as such only if “the victim has made that trailer an area \\n\\nof repose, one which he can reasonably expect to be safe from criminal intrusion.” \\n\\nTaylor, 428 S.E.2d at 274. Thus, burglary under North Carolina law does not \\n\\nextend to the breaking and entering of a mere automobile, but instead aligns with \\n\\nthe Supreme Court’s definition of generic burglary, encompassing such unlawful \\n\\nentry of a vehicle that is “adapted for or customarily used for lodging.” Stitt, 139 \\n\\nS.Ct. at 406. \\n\\n In sum, even though a mobile home can qualify as a “dwelling house” under \\n\\nNorth Carolina law, such a definition, as Stitt makes clear, does not broaden the \\n\\nstatute beyond ACCA’s reach. We therefore hold that second‐degree burglary in \\n\\nviolation of N.C. Gen. State § 14‐51 qualifies as a violent felony under ACCA’s \\n\\nenumerated clause. \\n\\n II \\n\\n Evans next argues that his prior conviction for federal bank robbery in \\n\\nviolation of 18 U.S.C. § 2113(a) does not categorically qualify as a violent felony \\n\\n\\n\\n\\n 14 \\n\\f \\nunder ACCA’s elements clause. By way of reminder, ACCA’s elements clause \\n\\ndefines the term “violent felony” as “an offense that is a felony” and \\n\\n (i) has as an element the use, attempted use, or threatened use of \\n physical force against the person or property of another. \\n \\n8 U.S.C. § 924(e). The federal bank robbery statute provides: \\n \\n (a) Whoever, by force and violence, or by intimidation, takes, or \\n attempts to take, from the person or presence of another, or obtains \\n or attempts to obtain by extortion any property or money or any other \\n thing of value belonging to, or in the care, custody, control, \\n management, or possession of, any bank, credit union, or any savings \\n and loan association . . . \\n \\n Shall be fined under this title or imprisoned not more than twenty \\n years, or both. \\n \\n18 U.S.C. § 2113(a). \\n \\n To address Evans’s claim we again apply the “categorical approach.” \\n\\nStokeling, 139 S.Ct. at 554–55 (applying the categorical approach in holding that \\n\\nrobbery under Florida law qualifies as a predicate violent felony under ACCA’s \\n\\nelements clause). “This approach, familiar by now, involves two steps: first we \\n\\nidentify the elements of the predicate conviction by determining the minimum \\n\\ncriminal conduct a defendant must commit to be convicted; second, we determine \\n\\nwhether that minimum criminal conduct has as an element the use, attempted use, \\n\\nor threatened use of physical force.” United States v. Moore, 916 F.3d 231, 240 (2d \\n\\n\\n 15 \\n\\f \\nCir. 2019) (internal quotation marks omitted). Once more, we may not “consider \\n\\nthe facts of the offense conduct . . . under the rigidly structured regime of \\n\\ncategorical analysis.” Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018) \\n\\n(internal quotation marks and citation omitted). \\n\\n Evans argues that federal bank robbery does not categorically qualify as a \\n\\ncrime of violence under ACCA’s elements clause because the offense \\n\\n“encompasses ‘intimidation’ and ‘extortion’ as ‘means’ by which the offense can \\n\\nbe accomplished.” Br. Def‐Appellant at 30. First, we need not address Evans’s \\n\\nargument regarding bank robbery “by extortion” because we agree with the Ninth \\n\\nCircuit that § 2113(a) “contains at least two separate offenses, bank robbery and \\n\\nbank extortion.” United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018). Because \\n\\nEvans was convicted of bank robbery—indeed Congress amended the statute after \\n\\nhis conviction to include bank extortion, Criminal Law and Procedure Technical \\n\\nAmendments Act of 1986, Pub. L. No. 99‐646 § 68, 100 Stat. 3592, 3616 (amending \\n\\n18 U.S.C. § 2113(a))—we need not decide whether bank extortion qualifies as a \\n\\ncrime of violence. \\n\\n Evans’s argument therefore hinges entirely on whether bank robbery “by \\n\\nintimidation” is categorically a crime of violence. In answering this question “we \\n\\n\\n\\n 16 \\n\\f \\ndo not write on a blank slate.” Hill, 890 F.3d at 56. As we recently observed in \\n\\nconcluding that federal credit union robbery qualifies as a crime of violence for the \\n\\npurposes of 18 U.S.C. § 924(c), “this circuit, in a summary order, and our sister \\n\\ncircuits, in published opinions, have consistently held that federal bank robbery \\n\\nby intimidation is a crime of violence under the force clause of various sentence \\n\\nenhancement Guidelines and statutes.” 4 United States v. Hendricks, 2019 WL \\n\\n1560582 at *5 (2d Cir. Apr. 11, 2019) (quotation marks omitted). These decisions \\n\\nhave rejected the same argument that Evans advances here. 5 As the Fourth \\n\\n\\n4 18 U.S.C. § 924(c)(3)’s “force clause” defines the term “crime of violence” as “an offense \\nthat is a felony” and “has as an element the use, attempted use, or threatened use of \\nphysical force against the person or property of another.” Id. at § 924(c)(3)(A). We have \\nnoted the similarities between ACCA’s “elements clause” and § 924(c)(3)’s “force clause” \\nand have accordingly looked to cases analyzing ACCA’s elements clause to interpret the \\n“similarly . . . worded” force clause presented in 924(c)(3)(A)). Hill, 890 F.3d at 56. We \\nhave done the same with § 4B1.2 of the Guidelines, which defines “crime of violence” for \\npurposes of the “career offender” enhancement, U.S.S.G. § 4B1.1(a), as an offense that is \\na felony and that “has as an element the use, attempted use, or threatened use of physical \\nforce against the person of another,” U.S.S.G. § 4B1.2(a)(1); see also United States v. Walker, \\n595 F.3d 441, 443 n.1 (2d Cir. 2010) (“Given the substantial similarity between the \\n[ACCA’s] definition of ‘violent felony’ and the [Guidelines’] definition of ‘crime of \\nviolence,’ authority interpreting one phrase frequently is found to be persuasive in \\ninterpreting the other phrase.”) (alterations in original) (quoting United States v. Winter, \\n22 F.3d 15, 18 n.3 (1st Cir. 1994)). \\n \\n5 See United States v. Ellison, 866 F.3d 32, 39–40 (1st Cir. 2017) (holding that federal bank \\n\\nrobbery qualifies as a crime of violence under the Guidelines’ career offender “force \\nclause”); United States v. Brewer, 848 F.3d 711, 715–16 (5th Cir. 2017) (same); United States \\nv. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same); United States v. Wright, 957 F.2d 520, \\n521–22 (8th Cir. 1992) (same); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same); \\n\\n 17 \\n\\f \\nCircuit has persuasively argued, “[a] taking ‘by force and violence’ entails the use \\n\\nof physical force. Likewise, a taking ‘by intimidation’ involves the threat to use \\n\\nsuch force.” United States. v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (emphasis \\n\\nadded); see also United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) \\n\\n(“‘[I]ntimidation’ as used in the federal bank robbery statute requires that a person \\n\\ntake property in such a way that would put an ordinary, reasonable person in fear \\n\\nof bodily harm, which necessarily entails the threatened use of physical force.” \\n\\n(internal quotation marks omitted)); United States v. Jones, 932 F.2d 624, 625 (7th \\n\\nCir. 1991) (“There is no ‘space’ between ‘bank robbery’ and ‘crime of violence’ \\n\\n. . . because violence in the broad sense that includes a merely threatened use of \\n\\nforce is an element of every bank robbery.”). \\n\\n The decades‐old out of circuit case law on which Evans relies in arguing to \\n\\nthe contrary merely confirms that bank robbery by intimidation necessarily \\n\\ninvolves the threat to use force. Evans cites to instances where a defendant was \\n\\n\\nUnited States v. Gutierrez, 876 F.3d 1254, 1256–57 (9th Cir. 2017) (holding that federal bank \\nrobbery is a crime of violence under § 924(c)(3)(A)); United States. v. McNeal, 818 F.3d 141, \\n156–57 (4th Cir. 2016) (same); see also United States v. Horsting, 678 F. App’x 947, 949–50 \\n(11th Cir. 2017) (unpublished opinion) (concluding that federal bank robbery constitutes \\na “violent felony” under ACCA); Kucinski v. United States, No. 16‐cv‐201‐PB, 2016 WL \\n4444736, at *3 (D.N.H. Aug. 23, 2016) (noting that “a number of courts have rejected these \\nsame arguments, and determined—unanimously, it appears—that federal bank robbery \\nconstitutes a violent felony under the ACCA”). \\n\\n\\n 18 \\n\\f \\nconvicted of bank robbery after making an emphatic written demand for money, \\n\\nabsent explicitly threatening to use force or violence. See, e.g., United States v. \\n\\nHenson, 945 F.2d 430, 439 (1st Cir. 1991) (affirming bank robbery conviction where \\n\\nevidence demonstrated that defendant stood within two feet of the teller and \\n\\nhanded her a note directing her to “put fifties and twenties into an envelope \\n\\nnow!!”); United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (affirming bank \\n\\nrobbery conviction where evidence demonstrated that defendant told teller that \\n\\n“she had ‘three seconds’ to give him the money in the top drawer, and then \\n\\nrepeated this demand”). Contrary to Evans’s assertion, these examples establish \\n\\nthat where a defendant commits bank robbery without engaging in acts of force or \\n\\nviolence, he necessarily invokes “the threat to use . . . force.” McNeal, 818 F.3d at \\n\\n153 (emphasis added). And a defendant issuing such a threat does not need to \\n\\n“specif[y] . . . any particular means in order [for that threat] to be effective.” Hill, \\n\\n890 F.3d at 59. In other words, a demand to “give me all your money” carries \\n\\nwith it an implicit threat of force. Only in “backing down in the face of these \\n\\nthreats [do] the victims avoid physical force.” United States v. Pereira‐Gomez, 903 \\n\\nF.3d 155, 166 (2d Cir. 2018) (holding that attempted robbery in the second degree \\n\\n\\n\\n\\n 19 \\n\\f \\nunder New York law qualifies as a “crime of violence” under the Guidelines’ \\n\\n“force clause”). \\n\\n Evans also argues that “intimidation” for the purposes of § 2113(a) requires \\n\\nonly “putting the victim in fear of bodily harm,” United States v. McCormack, 829 \\n\\nF.2d 322, 324 (2d Cir. 1987), and that the threatened use of physical force is not, in \\n\\nfact, essential to placing a person in such fear. Evans contends—though he cites \\n\\nto no case law on the subject—that federal bank robbery could theoretically be \\n\\nachieved by threatening to “injure” a victim via an indirect means such as \\n\\n“poison.” Br. Def‐Appellant at 34. We reject this argument as well. \\n\\n First, for the purposes of applying the categorical approach, “hypotheticals \\n\\nare insufficient” because a defendant must show that there is a “realistic \\n\\nprobability” that federal bank robbery would reach the conduct Evans describes. \\n\\nHill, 890 F.3d at 58 (internal quotation marks omitted). The categorical approach \\n\\n“requires more than the application of legal imagination to a . . . statute’s \\n\\nlanguage.” Deunas‐Alvarez, 549 U.S. at 193. Evans has not unearthed an \\n\\n\\n\\n\\n 20 \\n\\f \\nexample of “bank robbery by poison,” so his attempt at applying “legal \\n\\nimagination” to the federal bank robbery statute must accordingly fail, id.6 \\n\\n Next, we have already rejected the argument that placing another in fear of \\n\\ninjury—even indirect injury—does not involve a threat or use of force, see Hill, 890 \\n\\nF.3d at 59–60, and we do so again today. As we held in Hill: \\n\\n [A] robbery still has as an element “the use, attempted use, or \\n threatened use of physical force against the person or property of \\n another,” notwithstanding that it is accomplished by threatening to \\n poison a victim, rather than to shoot him. Some threats do not require \\n specification of any particular means in order to be effective; yet they \\n still threaten some type of violence and the application of some force. \\n Consider: “That’s a nice car—would you like to be able to continue \\n driving it?” \\n \\nId. at 59. Evans suggests that our decision in Hill is not binding here because it \\n\\nrelied on the Supreme Court’s decision in Castleman, which interpreted the word \\n\\n“force” as employed in connection with a different statute, 18 U.S.C. § 922(g)(9) \\n\\n(defining a misdemeanor crime of violence). See United States v. Castleman, 572 \\n\\nU.S. 157, 168 (2014). But Hill applied Castleman’s reasoning to 18 U.S.C. § 924 (at \\n\\n\\n\\n6 Furthermore, McCormack, on which Evans relies, does not define “intimidation” for the \\npurposes of interpreting the federal bank robbery statute, as Evans contends. Instead, \\nthe decision merely recites the jury instructions given by the district court in that \\nparticular case. See McCormack, 829 F.2d at 324–25 (holding that it was “inconceivable \\nthat any juror, after finding that [the defendant] pointed a gun at the bank teller and \\nthreatened to blow her head off, would conclude that she was not intimidated”). \\n\\n\\n 21 \\n\\f \\nissue here), noting that there was “no persuasive reason why the same principle \\n\\nshould not apply to the construction of § 924(c)(3).” Hill, 890 F.3d at 59. We find \\n\\nCastleman’s reasoning equally persuasive in the present case.7 \\n\\n For the numerous reasons catalogued above, federal bank robbery “requires \\n\\nthe use or threat of force in order to overcome the victim’s resistance to the theft,” \\n\\nMoore, 916 F.3d at 242 ( citing Stokeling, 139 S.Ct. at 555), and therefore qualifies as \\n\\na “violent felony” under ACCA’s elements clause. \\n\\n * * * \\n\\n The aspirations behind the categorical approach first articulated in Taylor \\n\\nwere worthy ones. The Supreme Court hoped to remain faithful to “ACCA’s text \\n\\nand history[,] . . . avoid[] the Sixth Amendment concerns that would arise from \\n\\nsentencing courts’ making findings of fact that properly belong to juries[, a]nd . . . \\n\\navert[] ‘the practical difficulties and potential unfairness of a factual approach.’” \\n\\n\\n7 Recent Supreme Court guidance interpreting ACCA’s elements clause buttresses our \\nconclusion that federal bank robbery qualifies as a crime of violence under ACCA. The \\nSupreme Court has now established that threatened force need not be of a particular \\nstrength in order to fall within ACCA’s elements clause. Stokeling, 139 S.Ct. at 554. \\n“Force” is “violent” for the purposes of ACCA if it is sufficient to “overcome the victim’s \\nresistance . . . however slight that resistance might be.” Id. at 550. Thus, while Evans \\nattempts to distinguish between the use of “some force” or “indirect force” and the use of \\n“violent force,” his proffered distinctions must fail. Evans has not offered an example of \\nfederal bank robbery that does not involve force sufficient to “overcome the victim’s \\nresistance,” and this court has been unable to conceive of one. \\n\\n\\n 22 \\n\\f \\nDescamps, 570 U.S. at 267 (quoting Taylor, 495 U.S. at 600–01). But the laudable \\n\\ngoals motivating this approach have not been realized. See Mathis, 136 S.Ct. at 2258 \\n\\n(Kennedy J., concurring) (labeling the categorical approach “a system that each \\n\\nyear proves more unworkable”); Transcript of Oral Argument at 26, Stitt, 139 S.Ct. \\n\\n(No. 17‐765) (Alito J.) (characterizing the Court’s categorical approach \\n\\njurisprudence as “one royal mess”). \\n\\n In hindsight, judicial difficulties with the categorical approach might have \\n\\nbeen expected. The approach demands that federal courts employ an analysis \\n\\nfor which they are not constitutionally (or practically) suited. While cases such \\n\\nas Evans’s undoubtedly pose an actual case or controversy as the Constitution \\n\\ndemands, see U.S. Const. art. III § 2, cl. I, the categorical approach paradoxically \\n\\ninstructs courts resolving such cases to embark on an intellectual enterprise \\n\\ngrounded in the facts of other cases not before them, or even imagined scenarios. \\n\\nCourts are required to discern the outer reaches of countless federal and state \\n\\nstatutory provisions in an exercise most reminiscent of the law school classroom, \\n\\nand quite alien to courts’ well‐established role of adjudicating “concrete legal \\n\\nissues, presented in actual cases, not abstractions.” United Public Workers v. \\n\\nMitchell, 330 U.S. 75, 89 (1947) (quotation marks omitted). \\n\\n\\n\\n 23 \\n\\f \\n A solution lies with two sources: Congress, which can “amend[] the ACCA,” \\n\\nand the Supreme Court, which may “revisit its precedents in an appropriate case.” \\n\\nMathis, 136 S.Ct. at 2258 (Kennedy J., concurring) (calling for a reconsideration of \\n\\nthe categorical approach should “continued congressional inaction” persist). \\n\\nMindful of the competing textual, constitutional, and practical concerns \\n\\nunderpinning the categorical approach, we offer no opinion as to which of the \\n\\nmany proposed solutions—from a conduct‐specific approach 8 to eliminating \\n\\nmandatory minimums9—may be appropriate. We ask only that Congress or the \\n\\nSupreme Court take action. Until such time, the litany of ACCA challenges will \\n\\ncontinue, as will our efforts faithfully to apply the categorical approach, however \\n\\n\\n8 See, e.g., U.S. Sent’g Commission, Proposed Amendments to the Federal Sentencing \\nGuidelines (Dec. 13, 2018), http://www.ussc.gov/sites/default/files/pdf/news/press‐\\nreleases‐and‐news‐advisories/press‐releases/20181213_News‐Release.pdf (announcing \\nproposed amendment to the Guidelines that would “enable the sentencing courts to \\nconsider the conduct that formed the basis of the offense of conviction” in light of the \\n“extensive litigation” and “inconsistent sentencing outcomes” that have resulted from \\nthe categorical approach). \\n \\n9 See, e.g., Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L. REV. \\n\\n199, 221–22 (1993) (arguing that Congress should eliminate mandatory minimums in \\nfavor of greater reliance on discretionary Guidelines, which “can achieve a substantial \\ndegree of determinacy, predictability, uniformity and even severity . . . [while still] \\npreserv[ing] discretion . . . and allow[ing] sufficient flexibility to avoid the inequities and \\nprocess costs that rigid mandatories entail”); see also United States v. Booker, 543 U.S. 220, \\n223 (2005) (explaining that “advisory [sentencing] provisions that recommend[], rather \\nthan require[], the selection of particular sentences in response to differing sets of facts, \\n. . . would not implicate the Sixth Amendment”). \\n\\n 24 \\n\\f \\nawkward its demand that judges deciding cases act, instead, the part of law school \\n\\nprofessors spinning out hypotheticals. \\n\\n CONCLUSION \\n\\n We conclude that second‐degree burglary under North Carolina law \\n\\nqualifies categorically as a crime of violence under ACCA’s enumerated clause \\n\\nand that federal bank robbery qualifies categorically as a crime of violence under \\n\\nACCA’s elements clause. We therefore AFFIRM the judgment of the district court. \\n\\n\\n\\n\\n 25\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1983,"cells":{"id":{"kind":"number","value":4617531,"string":"4,617,531"},"name":{"kind":"string","value":"Benjamin J. ASHMORE, Sr., Plaintiff-Appellant, Barbara A. Edwards, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin Jeffrey Ashmore, Plaintiff, v. CGI GROUP, INC., CGI Federal, Inc., Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Ashmore v. Cgi Grp., Inc."},"decision_date":{"kind":"string","value":"2019-05-08"},"docket_number":{"kind":"string","value":"Docket 18-2392-cv; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jacobs, Lynch, Hall\", \"parties\": \"\", \"opinions\": [{\"author\": \"GERARD E. LYNCH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-2392-cv\\nAshmore v. CGI Group\\n\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n (Argued: March 6, 2019 Decided: May 8, 2019)\\n\\n Docket No. 18-2392-cv\\n\\n\\n\\n BENJAMIN J. ASHMORE, SR.,\\n Plaintiff- Appellant,\\n\\n BARBARA A. EDWARDS, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin\\n Jeffrey Ashmore,\\n Plaintiff,\\n\\n — v. —\\n\\n CGI GROUP, INC., CGI FEDERAL, INC.,\\n\\n Defendants-Appellees.*\\n\\n\\n\\n\\n*\\n The Clerk of Court is respectfully directed to amend the caption as listed above.\\n\\fB e f o r e:\\n\\n JACOBS and LYNCH, Circuit Judges, and HALL, District Judge.**\\n\\n Plaintiff-Appellant Benjamin J. Ashmore, Sr., instituted this whistleblower\\naction under Section 806 of the Sarbanes-Oxley Act against defendants-appellees\\nCGI Group, Inc. and CGI Federal, Inc. (collectively, “CGI”), complaining that he\\nwas unlawfully fired in retaliation for his complaints about and objections to an\\nallegedly fraudulent scheme developed by CGI’s executives. The United States\\nDistrict Court for the Southern District of New York (Analisa Torres, Judge) held\\nthat Ashmore’s Sarbanes-Oxley claims survived summary judgment, but later\\ndismissed Ashmore as a plaintiff for lack of standing due to his parallel\\nbankruptcy proceedings. After Ashmore’s bankruptcy case was closed, he moved\\nto be substituted in as the proper party-in-interest. The district court granted his\\nmotion but then dismissed the case in its entirety on the grounds of judicial\\nestoppel. Because we find that the district court exceeded its discretion in\\ninvoking the judicial estoppel doctrine, we VACATE that judgment and\\nREMAND for further proceedings. Additionally, we AFFIRM the district court’s\\ngrant of partial summary judgment to CGI on Ashmore’s state-law breach of\\ncontract claim, and conclude that the district court’s order dismissing Ashmore\\nas a plaintiff is rendered moot by virtue of later developments.\\n\\n\\n\\n ROBERT L. HERBST, Herbst Law PLLC, New York, New York,\\n for Plaintiff-Appellant.\\n\\n ZACHARY D. FASMAN (Andrew M Sherwood, on the brief),\\n Proskauer Rose, LLP, New York, New York, for Defendants-\\n Appellees.\\n\\n\\n\\n\\n**\\n Judge Janet C. Hall, of the United States District Court for the District of\\nConnecticut, sitting by designation.\\n\\n 2\\n\\fGERARD E. LYNCH, Circuit Judge:\\n\\n This case requires us to consider the proper application, in the context of a\\n\\npro se debtor’s bankruptcy court filings, of judicial estoppel, a doctrine developed\\n\\nto prevent litigants who “play[] fast and loose with the courts from gaining\\n\\nunfair advantage through the deliberate adoption of inconsistent positions in\\n\\nsuccessive suits.” Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir. 2000). At\\n\\nissue here is whether a debtor whose initial bankruptcy filings do not properly\\n\\nlist his pending district court litigation as an “asset,” but who elsewhere\\n\\ndisclosed that lawsuit, both in his initial filings and to the trustee and bankruptcy\\n\\ncourt on numerous subsequent occasions, has concealed the litigation from the\\n\\nbankruptcy court such that he should be prevented from proceeding in district\\n\\ncourt with that suit. We conclude that he should not, and that the district court\\n\\nerred when it applied judicial estoppel to dismiss plaintiff’s suit.\\n\\n In addition, we find that the district court properly granted summary\\n\\njudgment to the defendants on plaintiff’s pendent state-law contract claim.\\n\\nAccordingly, we VACATE the judgment of the district court in part, AFFIRM in\\n\\npart, and REMAND the case to the district court for further proceedings.\\n\\n\\n\\n\\n 3\\n\\f BACKGROUND\\n\\n This case arises out of two separate proceedings ¯ one, a lawsuit filed by\\n\\nBenjamin J. Ashmore, Sr., under Section 806 of the Sarbanes-Oxley (“SOX”) Act\\n\\nin the Southern District of New York (“SDNY”) in November 2011, and the other,\\n\\na voluntary pro se Chapter 7 bankruptcy case filed in the Bankruptcy Court for\\n\\nthe District of New Jersey in April 2013. At issue in this appeal is whether\\n\\nAshmore made inconsistent assertions in the two proceedings such that his\\n\\nSDNY case should be dismissed on judicial estoppel grounds.\\n\\nI. Ashmore’s Sarbanes-Oxley Action\\n\\n On November 28, 2011, Ashmore filed a whistleblower complaint in the\\n\\nSouthern District of New York (Analisa Torres, Judge), in which he alleged that\\n\\ndefendants CGI Group Inc. and CGI Federal Inc. (collectively, “CGI”) had\\n\\nimproperly terminated his employment in retaliation for various actions he took\\n\\nupon discovering that CGI was developing fraudulent schemes to generate\\n\\nbusiness. According to Ashmore, CGI, a subcontractor for various public housing\\n\\nagencies, feared losing business due to a 2009 change in policy at the U.S.\\n\\nDepartment of Housing and Urban Development that would limit the number of\\n\\nprojects any individual subcontractor could bid on. Ashmore asserted that he\\n\\n\\n 4\\n\\fraised objections to the legality of a proposal that would allow CGI to counter the\\n\\neffects of the new rule by having employees enter bids through sham companies,\\n\\nand later transfer any resulting contracts back to CGI. It is undisputed that the\\n\\nalleged scheme was never implemented. Ashmore alleges that he was fired in\\n\\nretaliation for his objections to and complaints about the fraudulent scheme.\\n\\n In addition to his SOX claim, Ashmore brought a contract claim for a bonus\\n\\nhe claimed he was owed upon termination.\\n\\nII. Ashmore’s Bankruptcy Action\\n\\n On April 8, 2013, Ashmore electronically filed his Chapter 7 bankruptcy\\n\\npetition in the Bankruptcy Court for the District of New Jersey. When a debtor\\n\\nfiles for bankruptcy, he or she is required to fill out a series of forms and\\n\\nschedules. At the time of Ashmore’s filing, these forms included ten schedules,\\n\\non which various assets and liabilities were to be listed, including, inter alia,\\n\\n“Schedule A ¯ Real Property,” “Schedule B ¯ Personal Property,”and a\\n\\n“Statement of Financial Affairs.”\\n\\n At the time, the Schedule B form listed 34 specific categories of assets,\\n\\nincluding, inter alia, cash, bank accounts, household goods and furnishings, furs,\\n\\nannuities, patents, license, alimony, interests in partnerships, farm supplies, and\\n\\n\\n 5\\n\\f“[o]ther contingent and unliquidated claims of every nature, including tax\\n\\nrefunds, counterclaims of the debtor, and rights to setoff claims.” Joint Appendix\\n\\n(“J.A.”) 96. It also contained a miscellaneous category for “[o]ther personal\\n\\nproperty of any kind not already listed.” J.A. 97. It did not specifically ask the\\n\\ndebtor to list lawsuits to which he or she was a party, although Ashmore does\\n\\nnot now dispute that a lawsuit seeking damages for wrongful termination of\\n\\nemployment is an asset that should have been listed on the Schedule B.1 In\\n\\ncontrast, the Statement of Financial Affairs (“SOFA”) directed the debtor to\\n\\nanswer a number of specific questions, including, inter alia, to disclose “all suits\\n\\nand administrative proceedings to which the debtor is or was a party within one\\n\\nyear immediately preceding the filing of this bankruptcy case.” J.A. 123.\\n\\n While filling out the paperwork, Ashmore made the decision ¯ or error ¯\\n\\nthat gives rise to the present issue. Ashmore listed the SOX litigation on the\\n\\nSOFA; he wrote both the caption and docket number and indicated that the suit\\n\\nwas employment-related. He did not, however, list it on his Schedule B.\\n\\n\\n\\n\\n1\\n The Schedule B form was amended in 2015, and now specifically directs debtors\\nto list all “[c]laims against third parties, whether or not you have filed a lawsuit\\nor made a demand for payment.” Appellant Br. 17.\\n\\n 6\\n\\f Additionally, Ashmore was required to list his liabilities. He listed a total\\n\\nof $293,784 in unsecured debt, of which $135,878 was attributable to\\n\\nnondischargeable student loans and a significant portion was related to his recent\\n\\ndivorce.\\n\\n On April 10, 2013, Barbara Edwards was appointed interim trustee of the\\n\\nestate under Section 701 of the Bankruptcy Code. She continued to serve as\\n\\ntrustee, under Section 702(d), for the remainder of the relevant period.\\n\\n A. Meeting of Creditors\\n\\n On May 13, 2013, as required by Bankruptcy Code Section 341(a), Edwards\\n\\nconvened a meeting of creditors. It appears that no creditor attended this\\n\\nmeeting. Ashmore attended, as required, and disclosed to Edwards that he\\n\\nwould be unavailable for a future meeting due to a scheduled deposition in the\\n\\nSouthern District of New York. The precise contours of how extensively the SOX\\n\\nlitigation was discussed are not clear from the record, but it is undisputed by all\\n\\nthat it was at least referenced at the May 13 meeting.2\\n\\n\\n2\\n In a certification given in 2017, Edwards stated that Ashmore “testified\\nregarding [the SOX] litigation at the first meeting of creditors.” Joint Appendix\\n(“J.A.”) 1368. In addition, in a certification given on May 22, 2013, Edwards stated\\nthat Ashmore had a scheduling conflict due to “pending depositions in a Court\\naction in the Southern District of New York District Court.” J.A. 154. In its\\n\\n 7\\n\\f B. Motion to Dismiss Bankruptcy Case\\n\\n On June 19, 2013, Ashmore moved to dismiss his bankruptcy action. In his\\n\\nmotion papers he stated that “due to intervening matters,” he would “now be\\n\\nable to meet [his] obligations . . . . My filing was a mistake.” J.A. 185. Ashmore\\n\\ndid not specify the nature of the “intervening matters.” Edwards therefore asked\\n\\nAshmore to clarify, “so that both the Trustee and this Court can have a full\\n\\nunderstanding of the relevant circumstances.” J.A. 186.\\n\\n Accordingly, on June 21, 2013, Ashmore sent an explanatory letter to which\\n\\nhe attached the SOX complaint. Edwards published the letter on the bankruptcy\\n\\n\\n\\n\\nAugust 10, 2018, Opinion, the court did not specifically address the credibility of\\nEdwards’s statements, but noted that the 2013 certification did not “assert that\\nAshmore discussed the nature of this action, revealed that he was Plaintiff in this\\naction, or otherwise indicated that this action was an asset of his estate at the\\n§ 341 meeting.” Edwards v. CGI Grp. Inc., No. 11-cv-8611(AT), 2018 WL 4043142, at\\n*7 n.4 (S.D.N.Y. Aug. 10, 2018). It further disregarded the recitals in the\\nStipulation and Consent Order from the Bankruptcy Court that “Ashmore\\ndisclosed the SOX action . . . in his testimony at the first meeting of creditors” as\\nthe Consent Order had specifically noted that “the Stipulated Facts are not\\nbinding upon CGI, nor shall the Stipulated Facts have or be deemed to have any\\npreclusive effect with respect to CGI in the SOX action (or otherwise).” Id.,\\nquoting J.A. 1103, 1107. It thus concluded that there was “no evidence . . . that\\nAshmore disclosed this action as an asset at the § 341 meeting of creditors.” Id., at\\n*7. We conclude that the fairest reading of the record is that Ashmore made some\\ndisclosure at the meeting that was sufficient to put Edwards on notice of the SOX\\nlitigation, but that did not qualify as a “full” discussion of the case.\\n\\n 8\\n\\fcourt docket on July 17, 2013. She then proceeded to oppose dismissal of the\\n\\nbankruptcy petition, based on the fact that “it [was] now apparent that\\n\\n[Ashmore] is the plaintiff in a substantial whistleblower lawsuit,” and that the\\n\\nlawsuit was a potential asset that she should administer on behalf of the estate.\\n\\nJ.A. 186S87.\\n\\n Judge Morris Stern held a hearing on the motion to dismiss on July 23,\\n\\n2013, of which Ashmore’s creditors were notified. The colloquy at the hearing\\n\\nfocused on the SOX litigation. Ashmore testified at length about the\\n\\nwhistleblower case, including a pending summary judgment motion made by\\n\\nCGI, emphasizing that “trial . . . is right around the corner,” and that he therefore\\n\\nhad “every reason to believe that the unsecured creditors in [his] bankruptcy\\n\\npetition have every ability to be paid.” J.A. 194S95. He argued for dismissal so\\n\\nthat he could retain control of the lawsuit. For her part, Edwards appears to have\\n\\nbelieved that the “whistleblower lawsuit . . . now appears to be ready to be\\n\\nsettled” and that therefore the case should not be dismissed so that she could\\n\\neffect an “orderly distribution of the asset.” J.A. 191.\\n\\n After hearing argument from both sides, Judge Stern denied the motion,\\n\\nbut notified Ashmore that if disagreements arose between Ashmore and\\n\\n\\n 9\\n\\fEdwards as to the management of the case or the appropriate settlement number,\\n\\nAshmore could return to the bankruptcy court for assistance.\\n\\n After denial of the motion, Ashmore notified the district court that he was\\n\\ninvolved in bankruptcy proceedings and requested a 30-day stay for Edwards to\\n\\nretain counsel and move to be substituted in as the party-in-interest. Judge Torres\\n\\ngranted the stay on September 11, 2013.\\n\\n C. Letter Agreement\\n\\n On September 16, 2013, after ascertaining from Ashmore’s counsel that the\\n\\nSOX action was not in fact nearing an imminent conclusion, Edwards reversed\\n\\ncourse, writing to Ashmore that she was “willing to close the bankruptcy case\\n\\nand not administer the asset at this time,” so that Ashmore could “continue with\\n\\nthe litigation without any delay or jeopardy.” J.A. 200. Her proposal was\\n\\nconditioned upon Ashmore’s willingness to consent to the reopening of the case\\n\\nand “not claim that the litigation was abandoned by [her] closing of the case,” if\\n\\n“the amount [he] collect[s] from the litigation generates a significant distribution\\n\\nto unsecured creditors.” J.A. 200. Ashmore promptly agreed to the terms by\\n\\nsigning the letter and returning it to Edwards.\\n\\n\\n\\n\\n 10\\n\\f Under Section 554 of the Bankruptcy Code, property of the bankruptcy\\n\\nestate can be abandoned in two distinct ways: (1) after notice and a hearing, “the\\n\\ntrustee may abandon any property of the estate that is burdensome to the estate\\n\\nor that is of inconsequential value and benefit to the estate,” § 554(a), and (2) by\\n\\noperation of law, “any property scheduled under section 521(a)(1)3 of this title\\n\\nnot otherwise administered at the time of the closing of a case is abandoned to\\n\\nthe debtor,” § 554(c).\\n\\n D. Closing of Bankruptcy Case\\n\\n On September 17, 2013, Edwards filed a “Report of No Distribution” with\\n\\nthe bankruptcy court in which she stated that “there is no property available for\\n\\ndistribution,” and that the estate had thus been “fully administered” under\\n\\nFederal Rule of Bankruptcy Procedure 5009. J.A. 36. She did not mention the SOX\\n\\nlitigation. The same day, she notified Judge Torres that she had closed the\\n\\nbankruptcy proceeding and that the SOX litigation could thus “proceed outside\\n\\nof the Bankruptcy Court jurisdiction.” J.A. 201.\\n\\n\\n\\n\\n3\\n Section 521(a)(1) requires the debtor, as part of his or her bankruptcy petition, to\\nfile, inter alia, a schedule of assets and liabilities, a schedule of current income and\\ncurrent expenditures, and a statement of the debtor’s financial affairs.\\n\\n 11\\n\\f Without any further mention of, or inquiry into, the SOX litigation, Judge\\n\\nStern granted Ashmore’s discharge on November 18, 2013, and notified the\\n\\ncreditors on November 20, 2013. On November 22, 2013, the bankruptcy court\\n\\nissued a final decree that Ashmore’s bankruptcy estate had been administered\\n\\nfully, that Edwards had been discharged, and that the case was closed. As of that\\n\\ntime, Ashmore had listed $296,347 in debt to 29 creditors.\\n\\nIII. The Intersection of the Two Cases\\n\\n After this, the cases wound themselves into a tight spiral. We summarize\\n\\nthe most notable aspects of the twin procedural histories below.\\n\\n A. Edwards Moves to Reopen the Bankruptcy Case\\n\\n For approximately two years after the discharge decree, Ashmore’s SOX\\n\\ncase proceeded in the SDNY with no further reference to his standing to maintain\\n\\nthe action or to his bankruptcy filings. In August 2015, however, CGI retained\\n\\nnew counsel, who promptly contacted Edwards to inform her that Judge Torres\\n\\nwas soon to issue a decision on their summary judgment motion and that there\\n\\nhad been “substantial [settlement] offers . . . made by the CGI defendants, all of\\n\\nwhich were rejected by Mr. Ashmore.” J.A. 478.\\n\\n\\n\\n\\n 12\\n\\f In response, Edwards immediately moved to reopen the bankruptcy case,\\n\\nattaching the September 16, 2013 letter agreement (the “Letter Agreement”) and\\n\\nstating that she had been “advised by defense counsel in that case that . . .\\n\\nsettlement offers over $800,000.00 have been made.” J.A. 483.\\n\\n The next day, on September 23, 2015, Judge Torres denied CGI’s motion for\\n\\nsummary judgment on the SOX claims, finding that genuine issues of material\\n\\nfact existed.4 CGI immediately moved to stay all proceedings pending the\\n\\nresolution of Edwards’s motion to reopen Ashmore’s bankruptcy case. Judge\\n\\nTorres granted the motion.\\n\\n B. Edwards Withdraws Motion to Reopen\\n\\n Upon learning that Judge Torres had stayed the SOX case, Edwards\\n\\nwithdrew her motion to reopen the bankruptcy proceedings and contacted the\\n\\nSDNY with a clear statement of intent:\\n\\n It was [Edwards’s] intent at all times that Mr. Ashmore\\n would prosecute the Litigation against his former\\n employer as the plaintiff and that his bankruptcy estate\\n would retain an interest in the proceeds of any\\n recovery. . . . Edwards . . . supports the decision to\\n proceed to trial in light of the settlement offers that were\\n discussed. . . . Edwards withdrew her motion to reopen\\n\\n4\\n Judge Torres granted summary judgment to CGI on Ashmore’s contract claim,\\nhowever.\\n\\n 13\\n\\f the bankruptcy case at this time because it had seemed\\n to create confusion as to who was in a position to\\n prosecute the Litigation.\\n\\nJ.A. 544S45.\\n\\n She added that:\\n\\n The timing of the defendants’ concern for Mr.\\n Ashmore’s creditors also is suspect. There was no\\n attempt to conceal Mr. Ashmore’s Chapter 7 filing or the\\n bankruptcy estate’s interest in any recovery in the\\n Litigation. . . . Ms. Edwards made an informed decision\\n to allow Mr. Ashmore to proceed with the Litigation.\\n There are no undisclosed promises between the parties.\\n\\nJ.A. 544S45.\\n\\n In response, Judge Torres lifted the stay. CGI then moved to dismiss for\\n\\nlack of standing, arguing that the case had not been abandoned to Ashmore to\\n\\nprosecute.\\n\\n C. Edwards Attempts to Reopen for a Second Time\\n\\n On December 16, 2015, in response to the developments in the SDNY,\\n\\nEdwards made a second motion to reopen the bankruptcy case, stating that she\\n\\nwas “concerned that if the whistleblower suit is dismissed due to a lack of\\n\\nstanding a valuable asset will be lost for both the Debtor and his creditors.”5 J.A.\\n\\n5\\n Edwards listed as a secondary rationale that she had “learned since the filing of\\nthe initial Motion to reopen this case that the debtor had an interest in a\\n\\n 14\\n\\f647. She also contended that by arguing in his opposition papers to CGI’s motion\\n\\nto dismiss that Edwards had abandoned her interest in the SOX lawsuit,\\n\\nAshmore had violated the Letter Agreement.6 In response, Judge Torres yet again\\n\\nstayed proceedings in the SOX Action.\\n\\n Meanwhile, back in the New Jersey Bankruptcy Court, Bankruptcy Judge\\n\\nVincent F. Papalia was assigned to the matter upon the death of Judge Stern. At a\\n\\nhearing on February 16, 2016, Ashmore and Edwards submitted a proposed\\n\\nconsent order asking Judge Papalia to find, inter alia, that “Ashmore duly\\n\\ndisclosed [the SOX action] in his petition and in this case” and “[i]n accordance\\n\\nwith the terms of [the Letter Agreement], Ashmore, not his Chapter 7 Trustee,\\n\\n\\nsettlement in connection with another pre-petition litigation against a former\\nemployer, which was not previously disclosed in his Chapter 7 case.” J.A. 648.\\nAshmore recovered $8,553 on a 1.5% interest in a future sale of Clean Edison,\\nwhich Ashmore claimed he believed to be “worthless at the time he filed his\\nbankruptcy petition.” J.A. 659.\\n6\\n In Ashmore’s opposition papers, he argued that the Letter Agreement “could\\nonly prohibit [a claim that Edwards abandoned the action] in the New Jersey\\nBankruptcy Court in the event that, at the conclusion of the [SOX] case, the\\nlitigation generated a significant distribution to unsecured creditors, and the\\nformer trustee determined to move to reopen the case. It certainly has no\\napplication in this Court, on issues relating to standing to sue during the\\npendency of this case, before its conclusion resulting in a recovery for plaintiff.\\nIndeed, to the contrary, the letter agreement effectively memorialized the\\ntrustee’s conferral of standing upon Ashmore until the end of the case.” 1:11-cv-\\n08611-AT (S.D.N.Y.), ECF No. 194.\\n\\n 15\\n\\fhas been and remains the real and proper party-in-interest in the District Court\\n\\nLitigation.” J.A. 700. CGI objected, and Judge Papalia noted his discomfort with\\n\\nmaking “legal and factual findings . . . on a motion to reopen that didn’t ask for\\n\\nthat relief.” J.A. 752.\\n\\n At a second hearing on March 15, 2016, Judge Papalia, stating that he did\\n\\nnot “need to decide the abandonment issue on [a] narrow motion to reopen,”\\n\\nissued a narrower factual finding, including, inter alia, a statement that though\\n\\nthe SOX action “was not scheduled on B as an asset,” Ashmore had “list[ed] it on\\n\\nthe statement of financial affairs and also disclosed it at various points\\n\\nthroughout the bankruptcy case.” J.A. 884, 887. He then reopened Ashmore’s\\n\\nbankruptcy case “for the limited purpose of administering the Sarbanes Oxley\\n\\nLitigation and the CleanEdison settlement.” J.A. 904. He further took care to note\\n\\nthat “[n]othing contained herein shall be considered a determination of the\\n\\nestate’s interest, if any, in the Sarbanes Oxley Litigation.” J.A. 905.\\n\\n Once the bankruptcy case was reopened, Edwards issued a notice\\n\\ninforming creditors that assets had been located and they could file proofs of\\n\\nclaim.\\n\\n\\n\\n\\n 16\\n\\fIV. The District Court’s Resolution of the Issue\\n\\n In this posture ¯ with the Bankruptcy Case reopened for the limited\\n\\npurposes stated above, and the SDNY action stayed ¯ the parties continued to\\n\\nargue in both courts about whether Ashmore had been, and continued to be, a\\n\\nproper party-in-interest.\\n\\n A. Ashmore’s Motion in Bankruptcy Court\\n\\n When Judge Papalia declined to opine on whether the litigation had in fact\\n\\nbeen abandoned to Ashmore, he had invited further briefing, stating that if the\\n\\nissue was “ever presented to [him] in the proper context, then [he would] decide\\n\\nit.” J.A. 884. Ashmore moved for such a determination on April 5, 2016. The\\n\\nbankruptcy court scheduled a hearing to resolve the issue on May 10, 2016, of\\n\\nwhich Edwards informed Judge Torres.\\n\\n B. Judge Torres’s 2016 Opinion\\n\\n The day before the bankruptcy court hearing, Judge Torres issued an\\n\\nopinion concluding that Edwards had not abandoned the action to Ashmore\\n\\nunder § 554(c), since Ashmore had failed to list the asset on his Schedule B. She\\n\\nthen dismissed the district court action as to Ashmore and directed Edwards to\\n\\nsubstitute in as the proper party-in-interest.\\n\\n\\n 17\\n\\f C. Appeal to this Court\\n\\n Ashmore immediately appealed to this Court on the issue of whether the\\n\\nlitigation had been abandoned to him. In a 2017 opinion, we dismissed the case\\n\\nfor lack of jurisdiction, concluding that the “dismissal of the case as to Ashmore\\n\\nand the substitution of the Trustee as the plaintiff are interlocutory orders that\\n\\nare not immediately appealable.” Ashmore v. CGI Grp., Inc., 860 F.3d 80, 82 (2d\\n\\nCir. 2017).\\n\\n D. Official Abandonment of the SOX Action\\n\\n Meanwhile, on September 5, 2017, Edwards and Ashmore moved in\\n\\nbankruptcy court for approval of a settlement in which Edwards would officially\\n\\nabandon the SOX action under Section 554(a) of the Bankruptcy Code in\\n\\nexchange for Ashmore paying in full any creditors who had filed proofs of claim.\\n\\nOn July 25, 2017, in anticipation of settlement, Ashmore officially amended his\\n\\nSchedule B form to include the SOX litigation. The pertinent terms of the\\n\\nproposed settlement included:\\n\\n (1) that Ashmore would “deliver sufficient funds . . .\\n to pay all of the allowed Claims and the\\n Administrative Costs in full;”\\n (2) that Edwards would file a Notice of Abandonment\\n under Section 554(a); and\\n\\n\\n 18\\n\\f (3) that Edwards would use her “best efforts to\\n reasonably cooperate with the Debtor in the\\n substitution of the Debtor in the SOX action as the\\n plaintiff and proper party in interest.”\\n\\nJ.A. 1039S40.\\n\\n The bankruptcy court held a hearing on the proposed settlement on\\n\\nOctober 3, 2017, and approved it over CGI’s objections.7 As a result, Ashmore\\n\\npaid $50,356.88 to his creditors, covering the total amount of proofs of claim filed\\n\\nsince the reopening of the bankruptcy case. The difference between this\\n\\nsettlement payment and the $293,784 of claims that Ashmore originally listed on\\n\\nhis Schedule F is largely attributable to: (1) $135,878 in student loans that were\\n\\nnot dischargeable (and presumably not discharged); and (2) approximately\\n\\n$93,000 in claims related to his divorce that Ashmore resolved with his former\\n\\nwife outside of the bankruptcy proceedings.\\n\\n E. Dismissal for Judicial Estoppel\\n\\n After the SOX litigation was officially abandoned by Edwards, she and\\n\\nAshmore jointly moved in the district court to restore Ashmore as the plaintiff\\n\\n\\n\\n7\\n Judge Papalia did, however, include a rider to the Agreement stating that “[t]he\\nrecitals in this Stipulation and Consent Order . . . are binding upon only the\\nTrustee and the Debtor. . . . [They] are not binding upon CGI, nor . . . [shall they]\\nhave any preclusive effect with respect to CGI in the SOX action.” J.A. 1107.\\n\\n 19\\n\\fand proper party-in-interest. Ashmore also renewed an earlier motion for\\n\\nreconsideration of the 2016 Order dismissing the case for lack of standing, and\\n\\nCGI renewed an earlier motion for dismissal on the grounds of judicial estoppel.8\\n\\n On August 10, 2018, Judge Torres resolved all outstanding motions. She\\n\\nfirst granted Ashmore’s motion to be substituted as plaintiff, then denied his\\n\\nmotion for reconsideration as moot in light of Edwards’s official abandonment of\\n\\nthe SOX action, and finally granted CGI’s motion to dismiss on the grounds of\\n\\njudicial estoppel.\\n\\n This appeal follows.\\n\\n DISCUSSION\\n\\n On appeal, Ashmore challenges three orders of the district court: first, the\\n\\nAugust 10, 2018, Order in which the district court dismissed his case on the\\n\\ngrounds of judicial estoppel; second, the May 9, 2016, Order in which the district\\n\\ncourt found that Edwards had not abandoned the litigation to Ashmore and so\\n\\ndismissed the case for lack of standing; and third, the September 23, 2015,\\n\\n8\\n During the pendency of the settlement approval, both parties had made\\nmotions in the SDNY¯ CGI to dismiss the SOX action on the grounds of judicial\\nestoppel, and Ashmore for reconsideration of the 2016 Order. Judge Torres\\ndenied both motions pending the bankruptcy court’s decision, finding that\\n“judicial efficiency warrants waiting until the bankruptcy court has determined\\nwhether to approve the settlement.” J.A. 1026.\\n\\n 20\\n\\fdecision of the district court granting summary judgment to CGI on his contract\\n\\nclaims.\\n\\nI. Standard of Review\\n\\n A district court’s decision to invoke judicial estoppel is reviewed for abuse\\n\\nof discretion. Clark v. AII Acquisition, LLC, 886 F.3d 261, 265 (2d Cir. 2018). We\\n\\nhave emphasized, however, that “[w]hile deferential, abuse of discretion review\\n\\nis not a rubber stamp. A district court may not do inequity in the name of\\n\\nequity.” Id. at 266 (internal quotation marks omitted).\\n\\n We review orders granting dismissal or summary judgment de novo.\\n\\nGiuppone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013).\\n\\nII. Judicial Estoppel\\n\\n “The doctrine of judicial estoppel prevents a party from asserting a factual\\n\\nposition in one legal proceeding that is contrary to a position that it successfully\\n\\nadvanced in another proceeding.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369\\n\\nF.3d 113, 118 (2d Cir. 2004). Judicial estoppel functions to “protect the integrity of\\n\\nthe judicial process by prohibiting parties from deliberately changing positions\\n\\naccording to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S.\\n\\n742, 749S50 (2001) (internal quotation marks and citations omitted). Thus,\\n\\n\\n 21\\n\\f“[w]here a party assumes a certain position in a legal proceeding, and succeeds\\n\\nin maintaining that position, he may not thereafter, simply because his interests\\n\\nhave changed, assume a contrary position, especially if it be to the prejudice of\\n\\nthe party who has acquiesced in the position formerly taken by him.” Id. at 749\\n\\n(internal quotation marks and citations omitted).\\n\\n Judicial estoppel is properly invoked where: (1) a party’s later position is\\n\\nclearly inconsistent with its earlier position, and (2) the party’s former position\\n\\nhas been adopted in some way by the court in an earlier proceeding. Id. at\\n\\n750S51. We have also often, but not always, required a showing that the party\\n\\nasserting the two inconsistent positions would derive an unfair advantage\\n\\nagainst the party seeking estoppel. Id. at 751; see also BPP Illinois, LLC v. Royal\\n\\nBank of Scotland Grp. PLC, 859 F.3d 188, 194 (2d Cir. 2017). Finally, “[b]ecause the\\n\\ndoctrine is primarily concerned with protecting the judicial process, relief is\\n\\ngranted only when the risk of inconsistent results with its impact on judicial\\n\\nintegrity is certain.” Adelphia Recovery Tr. v. Goldman, Sachs & Co., 748 F.3d 110,\\n\\n116 (2d Cir. 2014) (internal quotation marks omitted).\\n\\n In sum, “[j]udicial estoppel is designed to prevent a party who plays fast\\n\\nand loose with the courts from gaining unfair advantage through the deliberate\\n\\n\\n 22\\n\\fadoption of inconsistent positions in successive suits.” Wight, 219 F.3d at 89.\\n\\nMoreover, “there must be a true inconsistency between the statements in the two\\n\\nproceedings. If the statements can be reconciled there is no occasion to apply an\\n\\nestoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 72S73 (2d Cir. 1997). Finally,\\n\\nthe “exact criteria for invoking judicial estoppel will vary based on specific\\n\\nfactual contexts.” Adelphia, 748 F.3d at 116 (internal quotation marks and citations\\n\\nomitted).\\n\\n A. Judicial Estoppel in the Bankruptcy Context\\n\\n Judicial estoppel is regularly invoked in the bankruptcy context;\\n\\nspecifically, “[j]udicial estoppel will prevent a party who failed to disclose a claim\\n\\nin bankruptcy proceedings from asserting that claim after emerging from\\n\\nbankruptcy.” BPP, 859 F.3d at 192 (internal quotation marks and citations\\n\\nomitted). Moreover, whether a party is advancing inconsistent claims in the\\n\\nbankruptcy context “is largely informed by the bankruptcy court’s treatment of\\n\\nthose claims.” Adelphia, 748 F.3d at 118. We have emphasized that\\n\\n“[d]etermination of the ownership of assets is at the core of the bankruptcy\\n\\nprocess. . . . It is therefore crucial, both for the sake of finality and the needs of\\n\\n\\n\\n\\n 23\\n\\fdebtors and creditors, that claims to ownership of various assets be determined\\n\\nin the bankruptcy proceedings.” Id.\\n\\n For the purposes of judicial estoppel, we typically find that a bankruptcy\\n\\ncourt “adopted” a particular position “when the bankruptcy court confirms a\\n\\nplan pursuant to which creditors release their claims against the debtor.” BPP,\\n\\n859 F.3d at 194 (internal quotation marks and citations omitted). We have\\n\\nrecently affirmed the use of judicial estoppel in two opinions dealing with failure\\n\\nto disclose assets in bankruptcy court.\\n\\n First, in Adelphia Recovery Trust v. Goldman, Sachs & Company, we affirmed\\n\\nthe use of judicial estoppel where the plaintiff cable company had failed to list on\\n\\nits bankruptcy filings an account whose ownership was in question. 748 F.3d at\\n\\n118. Throughout a five-year bankruptcy proceeding, plaintiff never claimed the\\n\\naccount as one of its assets; however, it later brought suit in the district court\\n\\nclaiming that the account was its own. We held that judicial estoppel was\\n\\nproperly invoked, concluding that “[a] different ruling would threaten the\\n\\nintegrity of the bankruptcy process by encouraging parties to alter their positions\\n\\nas to ownership of assets as they deem their litigation needs to change.” Id. at\\n\\n119.\\n\\n\\n 24\\n\\f Then, in BPP Illinois LLC v. the Royal Bank of Scotland Group PLC, we\\n\\naffirmed the use of judicial estoppel where a group of hotel-related businesses\\n\\nbrought a fraudulent inducement suit against several banks, but where, in a\\n\\nparallel bankruptcy proceeding, their “schedule of . . . assets, including legal\\n\\nclaims, never listed [the fraudulent inducement] claims,” 859 F. 3d at 191, and\\n\\nplaintiffs never disclosed the parallel legal proceedings throughout a two-year\\n\\nbankruptcy proceeding. Id. at 191S94.\\n\\n In contrast, in Clark v. AII Acquisition, LLC, we held that the district court\\n\\nabused its discretion where a debtor, “unsure of whether his bankruptcy asset\\n\\nschedules needed to be updated to reflect his diagnosis [of mesothelioma] and\\n\\nintention to litigate ¯ alerted his bankruptcy counsel . . . and trusted him to do\\n\\nwhat was required under the law.” 886 F.3d at 264 (internal quotation marks\\n\\nomitted). Clark’s counsel failed to convey the information to the bankruptcy\\n\\ncourt, however, and the district court subsequently dismissed Clark’s personal\\n\\ninjury suit on judicial estoppel grounds. Id. at 265. Noting that “judicial estoppel\\n\\nis not a mechanical rule,” id. at 266, we held that “[n]othing in the record . . .\\n\\nsuggests that the Clarks withheld Mr. Clark’s diagnosis from the bankruptcy\\n\\n\\n\\n\\n 25\\n\\fcourt in an effort to game the bankruptcy system,” and that therefore “principles\\n\\nof equity require the courts to entertain [the] personal injury claims,” id. at 268.\\n\\n B. Third Circuit Law\\n\\n We look to the law of the circuit in which the bankruptcy proceeding\\n\\noccurred “for the limited purpose” of determining whether the failure to list a\\n\\nparticular claim on a debtor’s bankruptcy filings “is equivalent to an assertion\\n\\nthat [the debtor] did not have such a claim.” BPP, 859 F.3d at 192.\\n\\n Because Ashmore’s bankruptcy proceeding was filed in New Jersey, we\\n\\nexamine whether, under Third Circuit law, failure to list a claim amounts to a\\n\\ndenial that the claim exists. As discussed below, the Third Circuit’s analysis\\n\\ndepends on the facts and circumstances of the case, and is intertwined with that\\n\\ncircuit’s judicial estoppel standard.\\n\\n More specifically, the Third Circuit has ”expressly left open the question of\\n\\nwhether . . . nondisclosure [on bankruptcy filings], standing alone, can support a\\n\\nfinding that a plaintiff has asserted inconsistent positions within the meaning of\\n\\nthe judicial-estoppel doctrine.” Ryan Ops. G.P. v. Santiam-Midwest Lumber Co., 81\\n\\nF.3d 355, 362 (3d Cir. 1996). Because the Third Circuit test focuses heavily on the\\n\\nintersection between inconsistent assertions and bad faith on behalf of the party\\n\\n\\n 26\\n\\faccused of making the contradictory statements, it has not needed to answer that\\n\\nnarrow question, but has instead stated that “[a]sserting inconsistent positions\\n\\ndoes not trigger the application of judicial estoppel unless intentional self-\\n\\ncontradiction is . . . used as a means of obtaining unfair advantage.” Id. (internal\\n\\nquotation marks omitted). It has further clarified that “[a]n inconsistent argument\\n\\nsufficient to invoke judicial estoppel must be attributable to intentional\\n\\nwrongdoing.” Id. (emphasis added).\\n\\n In its leading cases on the intersection of judicial estoppel and bankruptcy-\\n\\nrelated nondisclosures, the Third Circuit has twice considered whether judicial\\n\\nestoppel was appropriate and answered in the negative. First, in Ryan, the court\\n\\nconsidered whether the debtor’s failure to list various claims for breach of\\n\\nwarranty on either his Schedule B or SOFA forms was tantamount to an assertion\\n\\nthat they did not exist. Id. While Ryan had not yet filed suit at the time he filed\\n\\nfor bankruptcy, the Schedule B at the time required the debtor to list, inter alia,\\n\\n“contingent and unliquidated claims of every nature.” Id. The court found that\\n\\nRyan had violated his statutory duty of full disclosure by failing to list the claim,\\n\\nbut nevertheless found judicial estoppel inappropriate under the facts of that\\n\\n\\n\\n\\n 27\\n\\fcase, noting that Ryan’s lack of disclosure did not provide a basis for inferring his\\n\\nbad faith. Id. at 364. The court then continued:\\n\\n [P]olicy considerations militate against adopting a rule\\n that the requisite intent for judicial estoppel can be\\n inferred from the mere fact of nondisclosure in a\\n bankruptcy proceeding. Such a rule would unduly\\n expand the reach of judicial estoppel in post-bankruptcy\\n proceedings and would inevitably result in the\\n preclusion of viable claims on the basis of inadvertent or\\n good-faith inconsistencies. While we by no means\\n denigrate the importance of full disclosure or condone\\n nondisclosure in bankruptcy proceedings, we are\\n unwilling to treat careless or inadvertent nondisclosures\\n as equivalent to deliberate manipulation when\\n administering the “strong medicine” of judicial\\n estoppel.\\n\\nId.\\n\\n More recently, in In re Kane, the court found no error when a district court\\n\\ndid not invoke estoppel when a debtor had listed her divorce proceeding on her\\n\\nSOFA, but not, initially, on her Schedule B. 628 F.3d 631 (3d Cir. 2010). The Kane\\n\\nCourt noted that Ryan had left open the question of whether nondisclosure alone\\n\\ncould support a finding of “irreconcilable inconsistency,” and held that judicial\\n\\nestoppel was not required. Id. at 639. The court emphasized that “a debtor’s\\n\\nburden is limited to reasonable diligence in completing schedules.” Id. at 643\\n\\n(internal quotation marks and alterations omitted).\\n\\n 28\\n\\f We thus cannot discern in Third Circuit law an absolute answer to the\\n\\nnarrow question our case law asks us to consider: whether any nondisclosure on\\n\\nbehalf of Ashmore constitutes an assertion that the litigation does not exist. The\\n\\nanswer, it seems, is that it depends upon the facts and circumstances of the case,\\n\\nand how those facts and circumstances relate to the Third Circuit’s distinct test\\n\\nfor when to apply judicial estoppel’s “strong medicine.” Moreover, in cases not\\n\\nterribly different from the instant one, the Third Circuit has leaned against its\\n\\napplication.\\n\\n Having so established, we proceed to an examination of the four factors\\n\\nthat our precedent requires us to consider.\\n\\n C. Application of the Four Factor Test\\n\\n In its opinion, the district court concluded that each of the factors weighed\\n\\nin favor of judicial estoppel. Ashmore argues that these conclusions were\\n\\nerroneous. We will examine each factor in detail.\\n\\n 1. Advancement of Inconsistent Factual Positions\\n\\n The first requirement for a finding of judicial estoppel is that “a party’s\\n\\nlater position is ‘clearly inconsistent’ with its earlier position.” DeRosa v. Nat’l\\n\\nEnvelope Corp., 595 F.3d 99, 103 (2d Cir. 2010).\\n\\n\\n 29\\n\\f The district court first analyzed Third Circuit law, concluding that the\\n\\nfailure to list a pending action in the schedule of assets constitutes an assertion\\n\\nthat the action does not exist. It based this conclusion on three things: (1) a\\n\\nreading of the pre-Kane case law which emphasized the debtor’s duty of\\n\\ndisclosure; (2) two district court cases in which courts have stated, without\\n\\ncitation, that nondisclosure is an assertion that an action does not exist;9 and (3)\\n\\nthe contention that Kane is distinguishable from the instant case, based primarily\\n\\non the fact that the debtor in Kane almost immediately amended her Schedule B\\n\\n(whereas Ashmore amended it four years after the initial filing).\\n\\n We find these rationales unpersuasive. First, as noted above, the better\\n\\nreading of Third Circuit case law suggests that the question is not settled and that\\n\\nthe court, despite numerous opportunities to opine on the question, has\\n\\nspecifically left it open, preferring instead to focus its analysis on the bad or good\\n\\nfaith of the debtor. Without a doubt the Third Circuit emphasizes the critical\\n\\nnature of the duty of disclosure; it pairs that directive, however, with concern for\\n\\npreclusion of otherwise viable suits based on “careless or inadvertent\\n\\n\\n\\n9\\n Bartel ex rel. McQueen v. Charles Kurz & Co., 110 F. Supp. 3d 579, 587 (E.D. Pa.\\n2015); Giordano v. Saxon Mortg. Servs., Inc., 2013 WL 12158378, at *7 (D.N.J. Oct.\\n31, 2013).\\n\\n 30\\n\\fnondisclosures,” Ryan, 81 F.3d at 364, and limits a debtor’s burden to “reasonable\\n\\ndiligence,” In re Kane, 628 F.3d at 643, particularly in cases where the trustee or\\n\\nbankruptcy judge has indicated to the debtor that he has satisfied his disclosure\\n\\nrequirements.\\n\\n Second, our analysis is not affected by the fact that two district courts in\\n\\nthe Third Circuit have stated, without supporting citation, that a failure to\\n\\ndisclose a claim is a representation that such a claim does not exist. Such\\n\\ndecisions are not binding on us and do not constitute persuasive evidence that\\n\\nthe Third Circuit did not mean what it has clearly stated.\\n\\n Third, the district court’s conclusion that Kane is inapposite is entwined\\n\\nwith its finding that “Ashmore’s conduct at several stages of the Bankruptcy\\n\\naction and this action suggests an effort to conceal the existence of this action as\\n\\nan asset and shield it from his creditors.” Edwards v. CGI Grp. Inc., No. 11-cv-\\n\\n8611(AT), 2018 WL 4043142, at *8 (S.D.N.Y. Aug. 10, 2018). We do not agree that\\n\\nAshmore’s actions are consistent with an intent to conceal the SOX action’s\\n\\nexistence. The district court cites three actions taken by Ashmore as supporting\\n\\nits conclusion: (1) the fact that Ashmore’s initial June 2013 motion to dismiss his\\n\\nbankruptcy case cited only to “intervening matters;” (2) that Ashmore and\\n\\n\\n 31\\n\\fEdwards failed to disclose the Letter Agreement to the bankruptcy court; and (3)\\n\\nthat Ashmore opposed Edwards’s second motion to reopen and argued in the\\n\\ndistrict court that she had abandoned the action to him. These actions cannot bear\\n\\nthe weight assigned to them by the district court, especially in light of the\\n\\nnumerous actions that Ashmore took that demonstrate candor about the SOX\\n\\nlitigation.\\n\\n To begin with, we note that in Ashmore’s very first filing, as part of the\\n\\nSOFA, he listed the SOX litigation by name and docket number. Undoubtedly, he\\n\\nshould have listed it on the Schedule B. But it is difficult to attribute to a pro se\\n\\nlitigant a scheme to hide a fact that he disclosed on what would surely appear to\\n\\na lay person to be a parallel schedule. Moreover, Ashmore did mention the\\n\\nlitigation to Edwards at the creditors’ meeting, and provided her with a copy of\\n\\nthe complaint a few weeks later. Shortly thereafter, Edwards provided that\\n\\ncommunication to the bankruptcy judge and posted it on the docket for all to see.\\n\\nIt is thus undisputed that by July 2013, a mere three months after his initial filing,\\n\\nboth Edwards, as the estate trustee, and Judge Stern, the judge presiding over the\\n\\nbankruptcy action, were fully aware of the SOX litigation, and thus well situated\\n\\nto protect the creditors’ interests. That Ashmore initially attempted to dismiss his\\n\\n\\n\\n 32\\n\\fbankruptcy case due to “intervening matters,” and did not elaborate on what\\n\\nthose matters were until asked, is insufficient evidence of an intent to conceal.\\n\\nIndeed, it is not clear how Ashmore’s effort to undo his bankruptcy filing, rather\\n\\nthan to press ahead to obtain a discharge, suggests an effort to hide assets in\\n\\norder to defraud creditors. And clearly, from that point forward, rather than\\n\\nattempting to conceal the action, nearly every action Ashmore took in\\n\\nbankruptcy court had the SOX litigation at its centerpiece.\\n\\n That Edwards initially failed to disclose the Letter Agreement to the\\n\\nbankruptcy court is probative not of Ashmore’s bad faith or willingness to play\\n\\n“fast and loose” with the judiciary, but, if anything, of Edwards’s dereliction of\\n\\nduty under Bankruptcy Rule 9019(a), which requires the court to approve a\\n\\n“compromise or settlement” with notice to the creditors. Indeed, it is difficult to\\n\\nfault Ashmore, a pro se debtor, when Edwards was the only party with the\\n\\nauthority to move the bankruptcy court for approval of the Letter Agreement. See\\n\\nFed. R. Bankr. P. 9019(A) (“On motion by the trustee and after notice and a hearing,\\n\\nthe court may approve a compromise or settlement.”) (emphasis added). It is\\n\\neven more difficult to do so once we also recognize that it is the trustee, not the\\n\\ndebtor, who is charged with serving as the representative of the creditors and as\\n\\n\\n 33\\n\\fan officer of the court. Moreover, there is no evidence that Ashmore designed or\\n\\ndrafted the terms of the Letter Agreement, which instead was sent by Edwards to\\n\\nAshmore for his signature. Even assuming that Ashmore was the moving force\\n\\nbehind the Letter Agreement, it is apparent from the face of the Agreement that,\\n\\nfar from seeking to channel recovery to Ashmore at the creditors’ expense, the\\n\\nLetter Agreement sought to preserve the creditors’ rights in any settlement.\\n\\n Finally, Ashmore’s legal argument in the district court that his Letter\\n\\nAgreement with Edwards prohibited him from arguing about abandonment if\\n\\nthe SOX litigation generated a significant settlement is just that ¯ a legal\\n\\nargument. It is not probative of any intention on Ashmore’s part to conceal the\\n\\nSOX litigation from the bankruptcy court. In fact, in arguing abandonment,\\n\\nAshmore consistently represented to the district court and the bankruptcy court\\n\\nthat, under the Letter Agreement, his creditors had a right to any recovery that he\\n\\nmight obtain upon successful prosecution of the whistleblower suit.\\n\\n Under these circumstances, it cannot be concluded that Ashmore asserted\\n\\nclearly inconsistent positions. Ashmore’s position in the district court ¯ that he\\n\\ndid indeed have a SOX claim ¯ is clearly not inconsistent with: (1) listing the\\n\\nlitigation on his SOFA at the time of filing; (2) disclosing at least the existence of\\n\\n\\n\\n 34\\n\\fthe litigation at the creditors’ meeting; (3) attaching the complaint at Edwards’s\\n\\nrequest when he first attempted to dismiss the bankruptcy action; or (4) giving\\n\\nin-depth testimony at the July 23, 2013, hearing as to the nature of the SOX action\\n\\nand his desire to control the litigation. The scant facts relied upon by the district\\n\\ncourt are not sufficient, in the face of these actions, to support a finding that\\n\\nAshmore intended to persuade the bankruptcy court that he did not have a claim\\n\\nagainst CGI. We therefore hold that the district court clearly erred in finding that\\n\\nAshmore’s positions were “clearly inconsistent,” and that it erroneously\\n\\ninterpreted Third Circuit law when it concluded that his failure to list the claim\\n\\non his Schedule B was, in and of itself, an assertion that the litigation did not\\n\\nexist.\\n\\n 2. Adoption\\n\\n The second requirement for judicial estoppel is a finding that “the party’s\\n\\nformer position has been adopted in some way by the court in the earlier\\n\\nproceeding.” DeRosa, 595 F.3d at 103.\\n\\n The district court concluded that the bankruptcy court adopted the\\n\\nposition that there was no SOX litigation, citing several district court cases for the\\n\\nproposition that “a discharge of debts . . . together with the closing of a\\n\\n\\n\\n 35\\n\\fbankruptcy case without the distribution of an asset, constitutes an adoption of\\n\\nthe position that the asset does not exist.” Edwards, 2018 WL 4043142, at *8. It thus\\n\\nfound that, when the bankruptcy court originally discharged Ashmore’s debts\\n\\nwithout the distribution of any assets on November 18, 2013, it adopted the\\n\\nposition that the SOX litigation did not exist.\\n\\n Upon a thorough review of the record, the district court has again sliced\\n\\nthe argument too narrowly. The record does not tell us why Judge Stern did not\\n\\ninquire about the SOX litigation when he discharged Ashmore’s debts; it does,\\n\\nhowever, make clear that Judge Stern was fully aware of, and previously\\n\\nconsidered thoroughly, the potential of the SOX litigation to generate assets for\\n\\nthe creditors. It is true that under our case law, his discharge of the debt in 2013\\n\\ncould be read as an adoption of the position that the litigation did not exist. We\\n\\ndo not question the holding of Adelphia that “adoption in judicial estoppel is\\n\\nusually fulfilled when the bankruptcy court confirms a plan pursuant to which\\n\\ncreditors release their claims against the debtor.” 748 F.3d at 118 (internal\\n\\nquotation marks and alterations omitted; emphasis added). But given the\\n\\nmeandering course of this bankruptcy under the inconsistent actions of Edwards,\\n\\nthe trustee, this is not the usual bankruptcy case. At a minimum, from the time\\n\\n\\n 36\\n\\fthat the bankruptcy action was reopened in March 2016, “for the limited purpose\\n\\nof administering the Sarbanes Oxley Litigation,” J.A. 904, there can be no credible\\n\\nargument that the bankruptcy court had adopted such a position.\\n\\n Thus, when looked at as a whole, in light of the bankruptcy court’s clear\\n\\nunderstanding in July 2013 that the litigation existed (despite its willingness later\\n\\nto discharge Ashmore’s debts), as well as its total clarity as to the potential value\\n\\nof the litigation upon Edwards’s motion to reopen, we cannot say that the\\n\\nbankruptcy court adopted a position that the SOX litigation did not exist. We\\n\\ntherefore conclude that the district court’s analysis of the adoption question was\\n\\nerroneous.\\n\\n 3. Unfair Advantage/Detriment\\n\\n We often require ¯ in addition to the two requirements above ¯ that the\\n\\n“party seeking to assert an inconsistent position would derive an unfair\\n\\nadvantage or impose an unfair detriment on the opposing party if not estopped.”\\n\\nNew Hampshire, 532 U.S. at 751. However, “[w]e have been particularly apt to\\n\\noverlook the general requirement that a party seeking estoppel have suffered\\n\\nprejudice where . . . the party to be estopped failed to make the proper\\n\\ndisclosures during bankruptcy,” Clark, 886 F.3d at 267, and have instead justified\\n\\n\\n 37\\n\\fthe imposition of judicial estoppel in part on any unfair advantage the estopped\\n\\nparty may have gained over “former creditors, who had a right to consider the\\n\\n[undisclosed] claims during the bankruptcy proceeding,” BPP, 859 F.3d at 194.\\n\\n The district court considered this factor and concluded that “Ashmore\\n\\nderived an unfair advantage from his failure to disclose this action as an asset to\\n\\nthe Bankruptcy Court.” Edwards, 2018 WL 4043142, at *9. That conclusion, too, is\\n\\nerroneous, as the argument that Ashmore gained any advantage at the expense\\n\\nof his creditors is theoretical and speculative.\\n\\n Although Ashmore was initially discharged of his debts in September 2013,\\n\\nthe Letter Agreement provided that he would consent to reopen the case if he\\n\\nsucceeded in the SOX litigation. And in any event, the bankruptcy was later\\n\\nreopened and the creditors were advised of the litigation and invited to submit\\n\\nproofs of claim against the estate. Though it recognized these facts, the district\\n\\ncourt analyzed Ashmore’s potential unfair advantage over his creditors by\\n\\ncomparing the original amount owed at the time of the 2013 filing (over $290,000)\\n\\nwith the roughly $50,000 in claims that were filed upon the reopening of his\\n\\nbankruptcy action. It thus inferred that Ashmore was able to save nearly $240,000\\n\\n\\n\\n\\n 38\\n\\fthrough his alleged attempts to conceal the action from the creditors. We cannot\\n\\nagree.\\n\\n As an initial matter, and as the district court referenced in a footnote, of the\\n\\n$293,784 Ashmore originally listed on his Schedule F, $135,878 was for\\n\\nnondischargeable student loans. Accordingly, the discharge did not affect\\n\\nAshmore’s liability for that amount. Roughly $93,000 of the original amount\\n\\nlisted represented debts owed to his wife and wife’s attorney as part of a divorce\\n\\nproceeding.10 Ashmore later represented to the district court that “in May 2015,\\n\\n[he] reached an agreement with his former wife that resolve[d] the economic and\\n\\nother claims between them, including her claims in bankruptcy.” 1:11-cv-08611-\\n\\nAT (S.D.N.Y.), ECF No. 179, n.7. CGI offers no evidence or analysis to discredit\\n\\nthat representation.\\n\\n Of the remaining roughly $65,000 that Ashmore owed to creditors, claims\\n\\nwere filed in the amount of $50,356.88. To conclude that Ashmore was unfairly\\n\\nadvantaged because no claims were filed for the other roughly $15,000 is to\\n\\n\\n\\n10\\n More specifically, Ashmore’s Schedule F lists the following potential claims:\\n$49,530 to Ashmore’s ex-wife as part of a divorce judgment; $30,000 for\\nAshmore’s ex-wife’s legal fees; $12,046 for Ashmore’s share of a court-appointed\\nattorney for his children during the divorce; and $1634 to a “charged off account\\nduring divorce due to ex-wife charges.” J.A. 104S05. This totals $93,210.00.\\n\\n 39\\n\\fengage in an unduly speculative enterprise. Many of the claims were for as little\\n\\nas $125 or $1000. There is substantial uncertainty as to whether the creditors who\\n\\nchose not to file a proof of claim in 2016 after being advised of the potential value\\n\\nof the whistleblower suit might have found it worthwhile to do so in 2013 had\\n\\nthey known about the same suit then. Our precedents, Adelphia and BPP, deal\\n\\nwith numbers at a completely different scale. Moreover, they deal with situations\\n\\nwhere the litigation was never disclosed. Here, every creditor was notified in 2016\\n\\nof the opportunity to file a claim in light of a potentially valuable SOX litigation.\\n\\nThe reasons individual creditors filed or did not file are presumably various;\\n\\nthere is no evidence, however, that any of them were disadvantaged by anything\\n\\nthat happened in either proceeding.\\n\\n Moreover, CGI has failed to demonstrate that it has been unfairly\\n\\ndisadvantaged by Ashmore’s actions.11 While we have no occasion to address the\\n\\n\\n\\n11\\n We find no merit in CGI’s argument, on appeal, that it was disadvantaged\\nbecause of “Ashmore’s lack of standing and his continued attempts to regain\\ncontrol of this litigation.” Appellee Br. 53S54. The parties on both sides have\\ntaken strategic approaches that generated costs for the other side, as is the case in\\nall litigation. That cannot be what we mean when we discuss an “unfair\\ndetriment” that would lead to judicial estoppel. Whether Ashmore or Edwards\\ncontrolled the litigation, the plaintiff’s position in that litigation was adverse to\\nCGI, both had an interest in winning a substantial award at CGI’s expense, and\\nCGI’s chances of prevailing on the SOX claim were unaffected.\\n\\n 40\\n\\fmerits of Ashmore’s underlying suit, it does not escape our notice that CGI was\\n\\ndenied summary judgment on Ashmore’s SOX claim. To estop Ashmore from\\n\\npursuing a non-frivolous claim based on a speculative and hypothetical\\n\\nunfairness to the creditors who chose not to file a claim even after being advised\\n\\nthat the estate had assets after all, and thus to terminate a potentially meritorious\\n\\nsuit, does not comport with judicial estoppel’s proper role. Indeed, it risks\\n\\n“do[ing] inequity in the name of equity.” Clark, 886 F.3d at 266 (internal quotation\\n\\nmarks omitted).\\n\\n 4. Impact on Judicial Integrity\\n\\n Finally, “because [judicial estoppel] is primarily concerned with protecting\\n\\nthe judicial process, relief is granted only when the risk of inconsistent results\\n\\nwith its impact on judicial integrity is certain.” Adelphia, 748 F.3d at 116\\n\\n(alterations and internal quotation marks omitted).\\n\\n The district court here concluded that invoking judicial estoppel was\\n\\nnecessary to protect judicial integrity, holding that to “[a]llow[] a debtor to\\n\\nengage in such conduct ‘would only diminish [his] incentive to provide a true\\n\\nand complete disclosure of [his] assets to the bankruptcy courts.’” Edwards, 2018\\n\\n\\n\\n\\n 41\\n\\fWL 4043142, at *9, quoting Azuike v. BNY Mellon, 962 F. Supp. 2d 591, 599\\n\\n(S.D.N.Y. 2013).\\n\\n We disagree that judicial integrity requires dismissal here. Both the\\n\\nbankruptcy court and Edwards made a series of strategic decisions in an attempt\\n\\nto best preserve the SOX litigation as a potential asset for Ashmore’s creditors,\\n\\nconcluding in an official settlement whereby Ashmore paid the claims of all\\n\\ncreditors who sought relief,12 and Edwards officially abandoned the litigation to\\n\\nhim. To now find that Ashmore concealed the action from that same court would\\n\\nundermine the years of hearings and motions on exactly this issue.\\n\\n In Azuike, the district court case from which the opinion below quotes, the\\n\\nfacts tell a different story. There, the plaintiff, who was represented by counsel at\\n\\nthe time of his bankruptcy filing, failed to list his EEOC claim on either his SOFA\\n\\nor his Schedule B, an omission that was not remedied at any time prior to the\\n\\nclosing of his bankruptcy case. Id. at 594. He reopened his bankruptcy case and\\n\\ndisclosed the action to the trustee and bankruptcy court only when his adversary\\n\\n\\n\\n\\n12\\n The Department of Education filed a proof of claim for the entire balance due\\nand owing on Ashmore’s student loans; however, the bankruptcy court\\ndetermined on June 29, 2016, that the student loans, on which Ashmore was not\\nin default, were nondischargeable under the Bankruptcy Code.\\n\\n 42\\n\\fin district court challenged his standing. Id. at 596. Here, plaintiff filed pro se, did\\n\\ndisclose the action in his initial filings, did disclose in considerable detail to both\\n\\nEdwards and the bankruptcy court the nature of the SOX action, and even sought\\n\\nto withdraw his petition rather than seek a discharge, long before the bankruptcy\\n\\ncourt decided to grant a (later revoked) discharge.\\n\\n Thus, the concerns for judicial integrity cited by the district court, based on\\n\\na case in which a pending claim was never disclosed to the bankruptcy court, are\\n\\nconsiderably less weighty under the distinct factual circumstances presented by\\n\\nthis case.\\n\\n D. Previous Cases\\n\\n Our conclusion is strengthened by critical distinctions between this case\\n\\nand the other bankruptcy cases in which this court has approved the use of\\n\\njudicial estoppel.\\n\\n The most salient distinction is that in each other case in which we have had\\n\\nthe opportunity to consider nondisclosure of a lawsuit in a bankruptcy\\n\\nproceeding, the lawsuit has been fully nondisclosed ¯ that is, the action was\\n\\nmentioned neither on the Schedule B nor on the SOFA, nor at the meeting of\\n\\ncreditors, nor at any point in the bankruptcy proceedings. That was the case both\\n\\n\\n 43\\n\\fin BPP, where the plaintiff at no point in the bankruptcy proceedings disclosed\\n\\nany potential claim relating to LIBOR manipulation, 859 F.3d at 192, and in\\n\\nAdelphia, where the plaintiff at no time during its bankruptcy proceedings\\n\\nclaimed ownership of the account in question, 748 F.3d at 118. It was true even in\\n\\nClark, in which we found judicial estoppel wrongly invoked despite the fact that\\n\\nthe debtor’s personal injury lawsuit was never disclosed to the bankruptcy court.\\n\\n886 F.3d at 268.\\n\\n Two of our sister circuits have dealt with more analogous circumstances, in\\n\\nwhich pending litigation was orally disclosed to the trustee, but not included on\\n\\nthe written bankruptcy filings. In Spaine v. Community Contacts, Inc., 756 F.3d 542\\n\\n(7th Cir. 2014), the plaintiff, a pro se bankruptcy filer, failed to list a pending\\n\\nemployment discrimination claim on either her Schedule B or her SOFA, id. at\\n\\n544. She had, however, “told the bankruptcy trustee about her lawsuit,” and\\n\\nclaimed in an affidavit that she had not been “told by the bankruptcy court of\\n\\nany need to amend her schedules.” Id. at 545. The Spaine Court, noting that the\\n\\nevidence showed only “incomplete schedules that were timely corrected through\\n\\nan oral disclosure,” concluded that in order for judicial estoppel to apply, the\\n\\ndefendant would have needed to “show more than an initial nondisclosure on a\\n\\n\\n 44\\n\\fbankruptcy schedule.”13 Id. at 547S48. It then went on to state that “Spaine’s\\n\\ncreditors were not and could not have been injured by incomplete Chapter 7\\n\\nschedules that were orally corrected before Spaine received a discharge,” and\\n\\ncontrasted the case to others in which “debtors engaged in affirmative\\n\\nmisrepresentations,” including those who denied their pending lawsuits when\\n\\nasked directly by the trustee. Id. It held that where, in contrast, the evidence was\\n\\n“limited to an omission followed by a truthful oral disclosure,” judicial estoppel\\n\\nwas no longer the proper remedy. Id. at 548.\\n\\n The D.C. Circuit reached a contrary result in Marshall v. Honeywell\\n\\nTechnology Systems Inc., 828 F.3d 923, 925 (D.C. Cir. 2016). There, too, plaintiff\\n\\nfailed to disclose an employment discrimination suit on either her SOFA or her\\n\\nSchedule B, but did make an oral disclosure. Id. The court there found judicial\\n\\nestoppel appropriate, concluding, in contrast to the Seventh Circuit, that “oral\\n\\ndisclosure to the trustee did not constitute notice to her creditors and could not\\n\\ncorrect the false information she conveyed on her schedules.” Id. at 930. Its\\n\\nconviction that judicial estoppel was appropriate was strengthened by the facts of\\n\\n\\n13\\n The Court did note that it would have reached a different result “[i]f there were\\nundisputed evidence that Spaine intentionally concealed her claim.” Spaine, 756\\nF.3d at 548.\\n\\n 45\\n\\fthat case in which the debtor had listed some, but not all, of her administrative\\n\\nproceedings. Id. at 931. This led the Marshall Court to the conclusion that her\\n\\nomission was not likely the product merely of inadvertence or mistake. Id. at\\n\\n931S32.\\n\\n We conclude that the circumstances here are more like those in Spaine, and,\\n\\nlike the Seventh Circuit, we find judicial estoppel inappropriate. Indeed,\\n\\nAshmore was in some ways more forthcoming than Spaine: unlike Spaine,\\n\\nAshmore’s pending litigation was listed in his original bankruptcy filings. We\\n\\ntherefore think that Ashmore’s arguments against judicial estoppel are stronger\\n\\nthan Spaine’s were and, as noted above, we do not think the record supports a\\n\\nfinding that there was “undisputed evidence that [Ashmore] intentionally\\n\\nconcealed [his] claim.” Spaine, 756 F.3d at 548.\\n\\n We do not discount or deprecate the failure to accurately list a debtor’s\\n\\nassets. On the contrary, we recognize again today that full disclosure by debtors\\n\\nis essential to the proper functioning of the bankruptcy system and that,\\n\\ntherefore, judicial estoppel is an appropriate remedy for those who play “fast and\\n\\nloose” with the disclosure requirements. But we balance that concern against our\\n\\nconviction that the “exact criteria for invoking judicial estoppel will vary based\\n\\n\\n 46\\n\\fon ‘specific factual contexts,’ and that ‘courts have uniformly recognized that its\\n\\npurpose is to protect the integrity of the judicial process by prohibiting parties\\n\\nfrom deliberately changing positions according to the exigencies of the\\n\\nmoment.’” Adelphia, 748 F.3d at 116, quoting New Hampshire, 532 U.S. at 749S51.\\n\\nWe further reaffirm that “judicial estoppel is not a mechanical rule.” Clark, 886\\n\\nF.3d at 266.\\n\\n We therefore hold that where, as here, a pro se debtor has listed his\\n\\npending litigation on the SOFA, rather than the Schedule B as it was constituted\\n\\nat the time of Ashmore’s filing, and then disclosed it to the trustee and the\\n\\nbankruptcy court prior to discharge of his debt, and the trustee and the\\n\\nbankruptcy court were on sufficient notice to take steps to protect the creditors’\\n\\ninterests, the debtor is not estopped from pursuing that litigation by virtue of the\\n\\ndoctrine of judicial estoppel.14 For estoppel to apply, there must be greater indicia\\n\\nthan presented here of an intent to deceive the court for the debtor’s benefit.15\\n\\n\\n\\n14\\n We express no view as to whether different inferences would be warranted if a\\npetitioner failed to list a lawsuit on the present Schedule B form, which explicitly\\nasks for information about legal claims.\\n15\\n We note that in the past we have referenced a “good faith” exception to the\\ndoctrine of judicial estoppel. See Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d\\nCir. 1997). We have rarely invoked this exception, or explored its limits, and need\\nnot do so today, as we find that the affirmative requirements for judicial estoppel\\n\\n 47\\n\\fIII. Abandonment under Section 554(c)\\n\\n Ashmore also appeals the May 9, 2016, Order of the district court in which\\n\\nit found that he was without standing to pursue the SOX action, the action never\\n\\nhaving been properly abandoned to him by Edwards. He argues that his oral\\n\\ndisclosure and disclosure on the SOFA is adequate for the purposes of the\\n\\n§ 521(a)(1) “scheduling” that is required by § 554(c).\\n\\n That Order, however, is moot. Since it was issued, Edwards has\\n\\nunquestionably effected a successful abandonment of the litigation under\\n\\n§ 554(a). There is thus no remaining question as to Ashmore’s standing. We\\n\\ntherefore leave for another day the question of whether an asset disclosed to the\\n\\nbankruptcy court orally and on a SOFA, but not on a Schedule B, is abandoned to\\n\\nthe debtor.16\\n\\n\\n\\n\\nwere not met.\\n16\\n We note that in Ayazi v. New York City Board of Education, 315 F. App’x 313, 315\\n(2d Cir. 2009), a panel of this court found, by summary order, that such\\ncircumstances would not lead to abandonment by operation of law, emphasizing\\nthat the “strict formalities surrounding abandonment exist for the protection of\\nthe creditors.”\\n\\n 48\\n\\fIV. Contract Claims\\n\\n Ashmore also appeals the grant of summary judgment to CGI on his\\n\\ncontract claims, arguing that material questions of fact remain as to whether CGI\\n\\ndenied him a bonus to which he was contractually entitled.\\n\\n Ashmore’s offer letter states as follows:\\n\\n You will be eligible to be a participant in the CGI-Profit\\n Participation Program. Through this program, you can\\n earn an annual bonus based on the achievement of\\n certain financial results, client satisfaction, member\\n satisfaction and other measures tied to your\\n performance. This program is dependent upon the\\n success of the company, your business unit and your\\n own performance.\\n\\nJ.A. 295. Ashmore alleges that CGI breached the terms of the offer letter by failing\\n\\nto provide him a bonus under this program. He argues that material questions of\\n\\nfact remain as to his eligibility for a bonus. We disagree.\\n\\n First, by its very terms, the bonus is discretionary, and dependent on\\n\\nseveral factors, including both Ashmore’s and the company’s performance.\\n\\nSecond, evidence was presented that it was the clearly-stated policy of\\n\\nAshmore’s group to offer a bonus only after an employee had worked for at least\\n\\n\\n\\n\\n 49\\n\\fsix months and was still employed at the end of the fiscal year.17 Ashmore\\n\\npresented no evidence to the contrary.\\n\\n In this case, Ashmore began work in May 2009. Having not worked for\\n\\nCGI for 6 months by the close of that fiscal year ¯ September 30, 2009 ¯ he was\\n\\nnot eligible for a bonus at that time. While Ashmore worked for more than six\\n\\nmonths in the 2009S2010 fiscal year, he was fired before the end of the fiscal year,\\n\\nand thus he was not eligible for a bonus that year. Although Ashmore argues that\\n\\nthe offer letter requires him to receive a bonus, he points to no evidence\\n\\nsupporting that interpretation. We thus find that there is no material question of\\n\\nfact as to whether CGI breached the terms of the offer letter, and affirm the\\n\\ndistrict court’s grant of summary judgment on Ashmore’s contract claims.\\n\\nV. Judicial Reassignment\\n\\n Finally, Ashmore requests reassignment to a new judge, arguing that his\\n\\ncase “deserves a fresh look by a different pair of eyes,” citing Armstrong v.\\n\\nGuccione, 470 F.3d 89, 113 (2d Cir. 2006). He states without support that Judge\\n\\n\\n\\n\\n17\\n On December 14, 2009, Ashmore’s supervisor, Marybeth Carragher, sent the\\nfollowing email: “It has always been our policy . . . not to give [bonuses to] those\\nmembers on board less than 6 months of the [fiscal year].” J.A. 304.\\n\\n 50\\n\\fTorres has “shown . . . animus to Ashmore,” such that “her impartiality might\\n\\nreasonably be questioned.” Appellant Br. 68. We disagree.\\n\\n The premise of Ashmore’s request is that reassignment is needed because\\n\\nthe “facts might reasonably cause an objective observer to question the judge’s\\n\\nimpartiality.” Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010). But Ashmore\\n\\nhas not pointed to any such facts, nor could he on the record before us. While\\n\\nJudge Torres found that Ashmore had engaged in deceptive conduct, absolutely\\n\\nnothing in the record suggests that her judgment was affected by impartiality or\\n\\nanimus. We therefore deny Ashmore’s request for reassignment.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we VACATE the judgment of the district court\\n\\ninsofar as it applies either judicial estoppel or lack of standing to dismiss\\n\\nAshmore’s claims under the Sarbanes-Oxley Act, AFFIRM the judgment\\n\\ndismissing his breach of contract claim, and remand for further proceedings\\n\\nbefore Judge Torres consistent with this opinion.\\n\\n\\n\\n\\n 51\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4394784/\", \"author_raw\": \"GERARD E. LYNCH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"HALL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4617531/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Benjamin J. ASHMORE, Sr., Plaintiff-Appellant, Barbara A. Edwards, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin Jeffrey Ashmore, Plaintiff, v. CGI GROUP, INC., CGI Federal, Inc., Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-2392-cv\nAshmore v. CGI Group\n\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2018\n\n (Argued: March 6, 2019 Decided: May 8, 2019)\n\n Docket No. 18-2392-cv\n\n\n\n BENJAMIN J. ASHMORE, SR.,\n Plaintiff- Appellant,\n\n BARBARA A. EDWARDS, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin\n Jeffrey Ashmore,\n Plaintiff,\n\n — v. —\n\n CGI GROUP, INC., CGI FEDERAL, INC.,\n\n Defendants-Appellees.*\n\n\n\n\n*\n The Clerk of Court is respectfully directed to amend the caption as listed above.\n\fB e f o r e:\n\n JACOBS and LYNCH, Circuit Judges, and HALL, District Judge.**\n\n Plaintiff-Appellant Benjamin J. Ashmore, Sr., instituted this whistleblower\naction under Section 806 of the Sarbanes-Oxley Act against defendants-appellees\nCGI Group, Inc. and CGI Federal, Inc. (collectively, “CGI”), complaining that he\nwas unlawfully fired in retaliation for his complaints about and objections to an\nallegedly fraudulent scheme developed by CGI’s executives. The United States\nDistrict Court for the Southern District of New York (Analisa Torres, Judge) held\nthat Ashmore’s Sarbanes-Oxley claims survived summary judgment, but later\ndismissed Ashmore as a plaintiff for lack of standing due to his parallel\nbankruptcy proceedings. After Ashmore’s bankruptcy case was closed, he moved\nto be substituted in as the proper party-in-interest. The district court granted his\nmotion but then dismissed the case in its entirety on the grounds of judicial\nestoppel. Because we find that the district court exceeded its discretion in\ninvoking the judicial estoppel doctrine, we VACATE that judgment and\nREMAND for further proceedings. Additionally, we AFFIRM the district court’s\ngrant of partial summary judgment to CGI on Ashmore’s state-law breach of\ncontract claim, and conclude that the district court’s order dismissing Ashmore\nas a plaintiff is rendered moot by virtue of later developments.\n\n\n\n ROBERT L. HERBST, Herbst Law PLLC, New York, New York,\n for Plaintiff-Appellant.\n\n ZACHARY D. FASMAN (Andrew M Sherwood, on the brief),\n Proskauer Rose, LLP, New York, New York, for Defendants-\n Appellees.\n\n\n\n\n**\n Judge Janet C. Hall, of the United States District Court for the District of\nConnecticut, sitting by designation.\n\n 2\n\fGERARD E. LYNCH, Circuit Judge:\n\n This case requires us to consider the proper application, in the context of a\n\npro se debtor’s bankruptcy court filings, of judicial estoppel, a doctrine developed\n\nto prevent litigants who “play[] fast and loose with the courts from gaining\n\nunfair advantage through the deliberate adoption of inconsistent positions in\n\nsuccessive suits.” Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir. 2000). At\n\nissue here is whether a debtor whose initial bankruptcy filings do not properly\n\nlist his pending district court litigation as an “asset,” but who elsewhere\n\ndisclosed that lawsuit, both in his initial filings and to the trustee and bankruptcy\n\ncourt on numerous subsequent occasions, has concealed the litigation from the\n\nbankruptcy court such that he should be prevented from proceeding in district\n\ncourt with that suit. We conclude that he should not, and that the district court\n\nerred when it applied judicial estoppel to dismiss plaintiff’s suit.\n\n In addition, we find that the district court properly granted summary\n\njudgment to the defendants on plaintiff’s pendent state-law contract claim.\n\nAccordingly, we VACATE the judgment of the district court in part, AFFIRM in\n\npart, and REMAND the case to the district court for further proceedings.\n\n\n\n\n 3\n\f BACKGROUND\n\n This case arises out of two separate proceedings ¯ one, a lawsuit filed by\n\nBenjamin J. Ashmore, Sr., under Section 806 of the Sarbanes-Oxley (“SOX”) Act\n\nin the Southern District of New York (“SDNY”) in November 2011, and the other,\n\na voluntary pro se Chapter 7 bankruptcy case filed in the Bankruptcy Court for\n\nthe District of New Jersey in April 2013. At issue in this appeal is whether\n\nAshmore made inconsistent assertions in the two proceedings such that his\n\nSDNY case should be dismissed on judicial estoppel grounds.\n\nI. Ashmore’s Sarbanes-Oxley Action\n\n On November 28, 2011, Ashmore filed a whistleblower complaint in the\n\nSouthern District of New York (Analisa Torres, Judge), in which he alleged that\n\ndefendants CGI Group Inc. and CGI Federal Inc. (collectively, “CGI”) had\n\nimproperly terminated his employment in retaliation for various actions he took\n\nupon discovering that CGI was developing fraudulent schemes to generate\n\nbusiness. According to Ashmore, CGI, a subcontractor for various public housing\n\nagencies, feared losing business due to a 2009 change in policy at the U.S.\n\nDepartment of Housing and Urban Development that would limit the number of\n\nprojects any individual subcontractor could bid on. Ashmore asserted that he\n\n\n 4\n\fraised objections to the legality of a proposal that would allow CGI to counter the\n\neffects of the new rule by having employees enter bids through sham companies,\n\nand later transfer any resulting contracts back to CGI. It is undisputed that the\n\nalleged scheme was never implemented. Ashmore alleges that he was fired in\n\nretaliation for his objections to and complaints about the fraudulent scheme.\n\n In addition to his SOX claim, Ashmore brought a contract claim for a bonus\n\nhe claimed he was owed upon termination.\n\nII. Ashmore’s Bankruptcy Action\n\n On April 8, 2013, Ashmore electronically filed his Chapter 7 bankruptcy\n\npetition in the Bankruptcy Court for the District of New Jersey. When a debtor\n\nfiles for bankruptcy, he or she is required to fill out a series of forms and\n\nschedules. At the time of Ashmore’s filing, these forms included ten schedules,\n\non which various assets and liabilities were to be listed, including, inter alia,\n\n“Schedule A ¯ Real Property,” “Schedule B ¯ Personal Property,”and a\n\n“Statement of Financial Affairs.”\n\n At the time, the Schedule B form listed 34 specific categories of assets,\n\nincluding, inter alia, cash, bank accounts, household goods and furnishings, furs,\n\nannuities, patents, license, alimony, interests in partnerships, farm supplies, and\n\n\n 5\n\f“[o]ther contingent and unliquidated claims of every nature, including tax\n\nrefunds, counterclaims of the debtor, and rights to setoff claims.” Joint Appendix\n\n(“J.A.”) 96. It also contained a miscellaneous category for “[o]ther personal\n\nproperty of any kind not already listed.” J.A. 97. It did not specifically ask the\n\ndebtor to list lawsuits to which he or she was a party, although Ashmore does\n\nnot now dispute that a lawsuit seeking damages for wrongful termination of\n\nemployment is an asset that should have been listed on the Schedule B.1 In\n\ncontrast, the Statement of Financial Affairs (“SOFA”) directed the debtor to\n\nanswer a number of specific questions, including, inter alia, to disclose “all suits\n\nand administrative proceedings to which the debtor is or was a party within one\n\nyear immediately preceding the filing of this bankruptcy case.” J.A. 123.\n\n While filling out the paperwork, Ashmore made the decision ¯ or error ¯\n\nthat gives rise to the present issue. Ashmore listed the SOX litigation on the\n\nSOFA; he wrote both the caption and docket number and indicated that the suit\n\nwas employment-related. He did not, however, list it on his Schedule B.\n\n\n\n\n1\n The Schedule B form was amended in 2015, and now specifically directs debtors\nto list all “[c]laims against third parties, whether or not you have filed a lawsuit\nor made a demand for payment.” Appellant Br. 17.\n\n 6\n\f Additionally, Ashmore was required to list his liabilities. He listed a total\n\nof $293,784 in unsecured debt, of which $135,878 was attributable to\n\nnondischargeable student loans and a significant portion was related to his recent\n\ndivorce.\n\n On April 10, 2013, Barbara Edwards was appointed interim trustee of the\n\nestate under Section 701 of the Bankruptcy Code. She continued to serve as\n\ntrustee, under Section 702(d), for the remainder of the relevant period.\n\n A. Meeting of Creditors\n\n On May 13, 2013, as required by Bankruptcy Code Section 341(a), Edwards\n\nconvened a meeting of creditors. It appears that no creditor attended this\n\nmeeting. Ashmore attended, as required, and disclosed to Edwards that he\n\nwould be unavailable for a future meeting due to a scheduled deposition in the\n\nSouthern District of New York. The precise contours of how extensively the SOX\n\nlitigation was discussed are not clear from the record, but it is undisputed by all\n\nthat it was at least referenced at the May 13 meeting.2\n\n\n2\n In a certification given in 2017, Edwards stated that Ashmore “testified\nregarding [the SOX] litigation at the first meeting of creditors.” Joint Appendix\n(“J.A.”) 1368. In addition, in a certification given on May 22, 2013, Edwards stated\nthat Ashmore had a scheduling conflict due to “pending depositions in a Court\naction in the Southern District of New York District Court.” J.A. 154. In its\n\n 7\n\f B. Motion to Dismiss Bankruptcy Case\n\n On June 19, 2013, Ashmore moved to dismiss his bankruptcy action. In his\n\nmotion papers he stated that “due to intervening matters,” he would “now be\n\nable to meet [his] obligations . . . . My filing was a mistake.” J.A. 185. Ashmore\n\ndid not specify the nature of the “intervening matters.” Edwards therefore asked\n\nAshmore to clarify, “so that both the Trustee and this Court can have a full\n\nunderstanding of the relevant circumstances.” J.A. 186.\n\n Accordingly, on June 21, 2013, Ashmore sent an explanatory letter to which\n\nhe attached the SOX complaint. Edwards published the letter on the bankruptcy\n\n\n\n\nAugust 10, 2018, Opinion, the court did not specifically address the credibility of\nEdwards’s statements, but noted that the 2013 certification did not “assert that\nAshmore discussed the nature of this action, revealed that he was Plaintiff in this\naction, or otherwise indicated that this action was an asset of his estate at the\n§ 341 meeting.” Edwards v. CGI Grp. Inc., No. 11-cv-8611(AT), 2018 WL 4043142, at\n*7 n.4 (S.D.N.Y. Aug. 10, 2018). It further disregarded the recitals in the\nStipulation and Consent Order from the Bankruptcy Court that “Ashmore\ndisclosed the SOX action . . . in his testimony at the first meeting of creditors” as\nthe Consent Order had specifically noted that “the Stipulated Facts are not\nbinding upon CGI, nor shall the Stipulated Facts have or be deemed to have any\npreclusive effect with respect to CGI in the SOX action (or otherwise).” Id.,\nquoting J.A. 1103, 1107. It thus concluded that there was “no evidence . . . that\nAshmore disclosed this action as an asset at the § 341 meeting of creditors.” Id., at\n*7. We conclude that the fairest reading of the record is that Ashmore made some\ndisclosure at the meeting that was sufficient to put Edwards on notice of the SOX\nlitigation, but that did not qualify as a “full” discussion of the case.\n\n 8\n\fcourt docket on July 17, 2013. She then proceeded to oppose dismissal of the\n\nbankruptcy petition, based on the fact that “it [was] now apparent that\n\n[Ashmore] is the plaintiff in a substantial whistleblower lawsuit,” and that the\n\nlawsuit was a potential asset that she should administer on behalf of the estate.\n\nJ.A. 186S87.\n\n Judge Morris Stern held a hearing on the motion to dismiss on July 23,\n\n2013, of which Ashmore’s creditors were notified. The colloquy at the hearing\n\nfocused on the SOX litigation. Ashmore testified at length about the\n\nwhistleblower case, including a pending summary judgment motion made by\n\nCGI, emphasizing that “trial . . . is right around the corner,” and that he therefore\n\nhad “every reason to believe that the unsecured creditors in [his] bankruptcy\n\npetition have every ability to be paid.” J.A. 194S95. He argued for dismissal so\n\nthat he could retain control of the lawsuit. For her part, Edwards appears to have\n\nbelieved that the “whistleblower lawsuit . . . now appears to be ready to be\n\nsettled” and that therefore the case should not be dismissed so that she could\n\neffect an “orderly distribution of the asset.” J.A. 191.\n\n After hearing argument from both sides, Judge Stern denied the motion,\n\nbut notified Ashmore that if disagreements arose between Ashmore and\n\n\n 9\n\fEdwards as to the management of the case or the appropriate settlement number,\n\nAshmore could return to the bankruptcy court for assistance.\n\n After denial of the motion, Ashmore notified the district court that he was\n\ninvolved in bankruptcy proceedings and requested a 30-day stay for Edwards to\n\nretain counsel and move to be substituted in as the party-in-interest. Judge Torres\n\ngranted the stay on September 11, 2013.\n\n C. Letter Agreement\n\n On September 16, 2013, after ascertaining from Ashmore’s counsel that the\n\nSOX action was not in fact nearing an imminent conclusion, Edwards reversed\n\ncourse, writing to Ashmore that she was “willing to close the bankruptcy case\n\nand not administer the asset at this time,” so that Ashmore could “continue with\n\nthe litigation without any delay or jeopardy.” J.A. 200. Her proposal was\n\nconditioned upon Ashmore’s willingness to consent to the reopening of the case\n\nand “not claim that the litigation was abandoned by [her] closing of the case,” if\n\n“the amount [he] collect[s] from the litigation generates a significant distribution\n\nto unsecured creditors.” J.A. 200. Ashmore promptly agreed to the terms by\n\nsigning the letter and returning it to Edwards.\n\n\n\n\n 10\n\f Under Section 554 of the Bankruptcy Code, property of the bankruptcy\n\nestate can be abandoned in two distinct ways: (1) after notice and a hearing, “the\n\ntrustee may abandon any property of the estate that is burdensome to the estate\n\nor that is of inconsequential value and benefit to the estate,” § 554(a), and (2) by\n\noperation of law, “any property scheduled under section 521(a)(1)3 of this title\n\nnot otherwise administered at the time of the closing of a case is abandoned to\n\nthe debtor,” § 554(c).\n\n D. Closing of Bankruptcy Case\n\n On September 17, 2013, Edwards filed a “Report of No Distribution” with\n\nthe bankruptcy court in which she stated that “there is no property available for\n\ndistribution,” and that the estate had thus been “fully administered” under\n\nFederal Rule of Bankruptcy Procedure 5009. J.A. 36. She did not mention the SOX\n\nlitigation. The same day, she notified Judge Torres that she had closed the\n\nbankruptcy proceeding and that the SOX litigation could thus “proceed outside\n\nof the Bankruptcy Court jurisdiction.” J.A. 201.\n\n\n\n\n3\n Section 521(a)(1) requires the debtor, as part of his or her bankruptcy petition, to\nfile, inter alia, a schedule of assets and liabilities, a schedule of current income and\ncurrent expenditures, and a statement of the debtor’s financial affairs.\n\n 11\n\f Without any further mention of, or inquiry into, the SOX litigation, Judge\n\nStern granted Ashmore’s discharge on November 18, 2013, and notified the\n\ncreditors on November 20, 2013. On November 22, 2013, the bankruptcy court\n\nissued a final decree that Ashmore’s bankruptcy estate had been administered\n\nfully, that Edwards had been discharged, and that the case was closed. As of that\n\ntime, Ashmore had listed $296,347 in debt to 29 creditors.\n\nIII. The Intersection of the Two Cases\n\n After this, the cases wound themselves into a tight spiral. We summarize\n\nthe most notable aspects of the twin procedural histories below.\n\n A. Edwards Moves to Reopen the Bankruptcy Case\n\n For approximately two years after the discharge decree, Ashmore’s SOX\n\ncase proceeded in the SDNY with no further reference to his standing to maintain\n\nthe action or to his bankruptcy filings. In August 2015, however, CGI retained\n\nnew counsel, who promptly contacted Edwards to inform her that Judge Torres\n\nwas soon to issue a decision on their summary judgment motion and that there\n\nhad been “substantial [settlement] offers . . . made by the CGI defendants, all of\n\nwhich were rejected by Mr. Ashmore.” J.A. 478.\n\n\n\n\n 12\n\f In response, Edwards immediately moved to reopen the bankruptcy case,\n\nattaching the September 16, 2013 letter agreement (the “Letter Agreement”) and\n\nstating that she had been “advised by defense counsel in that case that . . .\n\nsettlement offers over $800,000.00 have been made.” J.A. 483.\n\n The next day, on September 23, 2015, Judge Torres denied CGI’s motion for\n\nsummary judgment on the SOX claims, finding that genuine issues of material\n\nfact existed.4 CGI immediately moved to stay all proceedings pending the\n\nresolution of Edwards’s motion to reopen Ashmore’s bankruptcy case. Judge\n\nTorres granted the motion.\n\n B. Edwards Withdraws Motion to Reopen\n\n Upon learning that Judge Torres had stayed the SOX case, Edwards\n\nwithdrew her motion to reopen the bankruptcy proceedings and contacted the\n\nSDNY with a clear statement of intent:\n\n It was [Edwards’s] intent at all times that Mr. Ashmore\n would prosecute the Litigation against his former\n employer as the plaintiff and that his bankruptcy estate\n would retain an interest in the proceeds of any\n recovery. . . . Edwards . . . supports the decision to\n proceed to trial in light of the settlement offers that were\n discussed. . . . Edwards withdrew her motion to reopen\n\n4\n Judge Torres granted summary judgment to CGI on Ashmore’s contract claim,\nhowever.\n\n 13\n\f the bankruptcy case at this time because it had seemed\n to create confusion as to who was in a position to\n prosecute the Litigation.\n\nJ.A. 544S45.\n\n She added that:\n\n The timing of the defendants’ concern for Mr.\n Ashmore’s creditors also is suspect. There was no\n attempt to conceal Mr. Ashmore’s Chapter 7 filing or the\n bankruptcy estate’s interest in any recovery in the\n Litigation. . . . Ms. Edwards made an informed decision\n to allow Mr. Ashmore to proceed with the Litigation.\n There are no undisclosed promises between the parties.\n\nJ.A. 544S45.\n\n In response, Judge Torres lifted the stay. CGI then moved to dismiss for\n\nlack of standing, arguing that the case had not been abandoned to Ashmore to\n\nprosecute.\n\n C. Edwards Attempts to Reopen for a Second Time\n\n On December 16, 2015, in response to the developments in the SDNY,\n\nEdwards made a second motion to reopen the bankruptcy case, stating that she\n\nwas “concerned that if the whistleblower suit is dismissed due to a lack of\n\nstanding a valuable asset will be lost for both the Debtor and his creditors.”5 J.A.\n\n5\n Edwards listed as a secondary rationale that she had “learned since the filing of\nthe initial Motion to reopen this case that the debtor had an interest in a\n\n 14\n\f647. She also contended that by arguing in his opposition papers to CGI’s motion\n\nto dismiss that Edwards had abandoned her interest in the SOX lawsuit,\n\nAshmore had violated the Letter Agreement.6 In response, Judge Torres yet again\n\nstayed proceedings in the SOX Action.\n\n Meanwhile, back in the New Jersey Bankruptcy Court, Bankruptcy Judge\n\nVincent F. Papalia was assigned to the matter upon the death of Judge Stern. At a\n\nhearing on February 16, 2016, Ashmore and Edwards submitted a proposed\n\nconsent order asking Judge Papalia to find, inter alia, that “Ashmore duly\n\ndisclosed [the SOX action] in his petition and in this case” and “[i]n accordance\n\nwith the terms of [the Letter Agreement], Ashmore, not his Chapter 7 Trustee,\n\n\nsettlement in connection with another pre-petition litigation against a former\nemployer, which was not previously disclosed in his Chapter 7 case.” J.A. 648.\nAshmore recovered $8,553 on a 1.5% interest in a future sale of Clean Edison,\nwhich Ashmore claimed he believed to be “worthless at the time he filed his\nbankruptcy petition.” J.A. 659.\n6\n In Ashmore’s opposition papers, he argued that the Letter Agreement “could\nonly prohibit [a claim that Edwards abandoned the action] in the New Jersey\nBankruptcy Court in the event that, at the conclusion of the [SOX] case, the\nlitigation generated a significant distribution to unsecured creditors, and the\nformer trustee determined to move to reopen the case. It certainly has no\napplication in this Court, on issues relating to standing to sue during the\npendency of this case, before its conclusion resulting in a recovery for plaintiff.\nIndeed, to the contrary, the letter agreement effectively memorialized the\ntrustee’s conferral of standing upon Ashmore until the end of the case.” 1:11-cv-\n08611-AT (S.D.N.Y.), ECF No. 194.\n\n 15\n\fhas been and remains the real and proper party-in-interest in the District Court\n\nLitigation.” J.A. 700. CGI objected, and Judge Papalia noted his discomfort with\n\nmaking “legal and factual findings . . . on a motion to reopen that didn’t ask for\n\nthat relief.” J.A. 752.\n\n At a second hearing on March 15, 2016, Judge Papalia, stating that he did\n\nnot “need to decide the abandonment issue on [a] narrow motion to reopen,”\n\nissued a narrower factual finding, including, inter alia, a statement that though\n\nthe SOX action “was not scheduled on B as an asset,” Ashmore had “list[ed] it on\n\nthe statement of financial affairs and also disclosed it at various points\n\nthroughout the bankruptcy case.” J.A. 884, 887. He then reopened Ashmore’s\n\nbankruptcy case “for the limited purpose of administering the Sarbanes Oxley\n\nLitigation and the CleanEdison settlement.” J.A. 904. He further took care to note\n\nthat “[n]othing contained herein shall be considered a determination of the\n\nestate’s interest, if any, in the Sarbanes Oxley Litigation.” J.A. 905.\n\n Once the bankruptcy case was reopened, Edwards issued a notice\n\ninforming creditors that assets had been located and they could file proofs of\n\nclaim.\n\n\n\n\n 16\n\fIV. The District Court’s Resolution of the Issue\n\n In this posture ¯ with the Bankruptcy Case reopened for the limited\n\npurposes stated above, and the SDNY action stayed ¯ the parties continued to\n\nargue in both courts about whether Ashmore had been, and continued to be, a\n\nproper party-in-interest.\n\n A. Ashmore’s Motion in Bankruptcy Court\n\n When Judge Papalia declined to opine on whether the litigation had in fact\n\nbeen abandoned to Ashmore, he had invited further briefing, stating that if the\n\nissue was “ever presented to [him] in the proper context, then [he would] decide\n\nit.” J.A. 884. Ashmore moved for such a determination on April 5, 2016. The\n\nbankruptcy court scheduled a hearing to resolve the issue on May 10, 2016, of\n\nwhich Edwards informed Judge Torres.\n\n B. Judge Torres’s 2016 Opinion\n\n The day before the bankruptcy court hearing, Judge Torres issued an\n\nopinion concluding that Edwards had not abandoned the action to Ashmore\n\nunder § 554(c), since Ashmore had failed to list the asset on his Schedule B. She\n\nthen dismissed the district court action as to Ashmore and directed Edwards to\n\nsubstitute in as the proper party-in-interest.\n\n\n 17\n\f C. Appeal to this Court\n\n Ashmore immediately appealed to this Court on the issue of whether the\n\nlitigation had been abandoned to him. In a 2017 opinion, we dismissed the case\n\nfor lack of jurisdiction, concluding that the “dismissal of the case as to Ashmore\n\nand the substitution of the Trustee as the plaintiff are interlocutory orders that\n\nare not immediately appealable.” Ashmore v. CGI Grp., Inc., 860 F.3d 80, 82 (2d\n\nCir. 2017).\n\n D. Official Abandonment of the SOX Action\n\n Meanwhile, on September 5, 2017, Edwards and Ashmore moved in\n\nbankruptcy court for approval of a settlement in which Edwards would officially\n\nabandon the SOX action under Section 554(a) of the Bankruptcy Code in\n\nexchange for Ashmore paying in full any creditors who had filed proofs of claim.\n\nOn July 25, 2017, in anticipation of settlement, Ashmore officially amended his\n\nSchedule B form to include the SOX litigation. The pertinent terms of the\n\nproposed settlement included:\n\n (1) that Ashmore would “deliver sufficient funds . . .\n to pay all of the allowed Claims and the\n Administrative Costs in full;”\n (2) that Edwards would file a Notice of Abandonment\n under Section 554(a); and\n\n\n 18\n\f (3) that Edwards would use her “best efforts to\n reasonably cooperate with the Debtor in the\n substitution of the Debtor in the SOX action as the\n plaintiff and proper party in interest.”\n\nJ.A. 1039S40.\n\n The bankruptcy court held a hearing on the proposed settlement on\n\nOctober 3, 2017, and approved it over CGI’s objections.7 As a result, Ashmore\n\npaid $50,356.88 to his creditors, covering the total amount of proofs of claim filed\n\nsince the reopening of the bankruptcy case. The difference between this\n\nsettlement payment and the $293,784 of claims that Ashmore originally listed on\n\nhis Schedule F is largely attributable to: (1) $135,878 in student loans that were\n\nnot dischargeable (and presumably not discharged); and (2) approximately\n\n$93,000 in claims related to his divorce that Ashmore resolved with his former\n\nwife outside of the bankruptcy proceedings.\n\n E. Dismissal for Judicial Estoppel\n\n After the SOX litigation was officially abandoned by Edwards, she and\n\nAshmore jointly moved in the district court to restore Ashmore as the plaintiff\n\n\n\n7\n Judge Papalia did, however, include a rider to the Agreement stating that “[t]he\nrecitals in this Stipulation and Consent Order . . . are binding upon only the\nTrustee and the Debtor. . . . [They] are not binding upon CGI, nor . . . [shall they]\nhave any preclusive effect with respect to CGI in the SOX action.” J.A. 1107.\n\n 19\n\fand proper party-in-interest. Ashmore also renewed an earlier motion for\n\nreconsideration of the 2016 Order dismissing the case for lack of standing, and\n\nCGI renewed an earlier motion for dismissal on the grounds of judicial estoppel.8\n\n On August 10, 2018, Judge Torres resolved all outstanding motions. She\n\nfirst granted Ashmore’s motion to be substituted as plaintiff, then denied his\n\nmotion for reconsideration as moot in light of Edwards’s official abandonment of\n\nthe SOX action, and finally granted CGI’s motion to dismiss on the grounds of\n\njudicial estoppel.\n\n This appeal follows.\n\n DISCUSSION\n\n On appeal, Ashmore challenges three orders of the district court: first, the\n\nAugust 10, 2018, Order in which the district court dismissed his case on the\n\ngrounds of judicial estoppel; second, the May 9, 2016, Order in which the district\n\ncourt found that Edwards had not abandoned the litigation to Ashmore and so\n\ndismissed the case for lack of standing; and third, the September 23, 2015,\n\n8\n During the pendency of the settlement approval, both parties had made\nmotions in the SDNY¯ CGI to dismiss the SOX action on the grounds of judicial\nestoppel, and Ashmore for reconsideration of the 2016 Order. Judge Torres\ndenied both motions pending the bankruptcy court’s decision, finding that\n“judicial efficiency warrants waiting until the bankruptcy court has determined\nwhether to approve the settlement.” J.A. 1026.\n\n 20\n\fdecision of the district court granting summary judgment to CGI on his contract\n\nclaims.\n\nI. Standard of Review\n\n A district court’s decision to invoke judicial estoppel is reviewed for abuse\n\nof discretion. Clark v. AII Acquisition, LLC, 886 F.3d 261, 265 (2d Cir. 2018). We\n\nhave emphasized, however, that “[w]hile deferential, abuse of discretion review\n\nis not a rubber stamp. A district court may not do inequity in the name of\n\nequity.” Id. at 266 (internal quotation marks omitted).\n\n We review orders granting dismissal or summary judgment de novo.\n\nGiuppone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013).\n\nII. Judicial Estoppel\n\n “The doctrine of judicial estoppel prevents a party from asserting a factual\n\nposition in one legal proceeding that is contrary to a position that it successfully\n\nadvanced in another proceeding.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369\n\nF.3d 113, 118 (2d Cir. 2004). Judicial estoppel functions to “protect the integrity of\n\nthe judicial process by prohibiting parties from deliberately changing positions\n\naccording to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S.\n\n742, 749S50 (2001) (internal quotation marks and citations omitted). Thus,\n\n\n 21\n\f“[w]here a party assumes a certain position in a legal proceeding, and succeeds\n\nin maintaining that position, he may not thereafter, simply because his interests\n\nhave changed, assume a contrary position, especially if it be to the prejudice of\n\nthe party who has acquiesced in the position formerly taken by him.” Id. at 749\n\n(internal quotation marks and citations omitted).\n\n Judicial estoppel is properly invoked where: (1) a party’s later position is\n\nclearly inconsistent with its earlier position, and (2) the party’s former position\n\nhas been adopted in some way by the court in an earlier proceeding. Id. at\n\n750S51. We have also often, but not always, required a showing that the party\n\nasserting the two inconsistent positions would derive an unfair advantage\n\nagainst the party seeking estoppel. Id. at 751; see also BPP Illinois, LLC v. Royal\n\nBank of Scotland Grp. PLC, 859 F.3d 188, 194 (2d Cir. 2017). Finally, “[b]ecause the\n\ndoctrine is primarily concerned with protecting the judicial process, relief is\n\ngranted only when the risk of inconsistent results with its impact on judicial\n\nintegrity is certain.” Adelphia Recovery Tr. v. Goldman, Sachs & Co., 748 F.3d 110,\n\n116 (2d Cir. 2014) (internal quotation marks omitted).\n\n In sum, “[j]udicial estoppel is designed to prevent a party who plays fast\n\nand loose with the courts from gaining unfair advantage through the deliberate\n\n\n 22\n\fadoption of inconsistent positions in successive suits.” Wight, 219 F.3d at 89.\n\nMoreover, “there must be a true inconsistency between the statements in the two\n\nproceedings. If the statements can be reconciled there is no occasion to apply an\n\nestoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 72S73 (2d Cir. 1997). Finally,\n\nthe “exact criteria for invoking judicial estoppel will vary based on specific\n\nfactual contexts.” Adelphia, 748 F.3d at 116 (internal quotation marks and citations\n\nomitted).\n\n A. Judicial Estoppel in the Bankruptcy Context\n\n Judicial estoppel is regularly invoked in the bankruptcy context;\n\nspecifically, “[j]udicial estoppel will prevent a party who failed to disclose a claim\n\nin bankruptcy proceedings from asserting that claim after emerging from\n\nbankruptcy.” BPP, 859 F.3d at 192 (internal quotation marks and citations\n\nomitted). Moreover, whether a party is advancing inconsistent claims in the\n\nbankruptcy context “is largely informed by the bankruptcy court’s treatment of\n\nthose claims.” Adelphia, 748 F.3d at 118. We have emphasized that\n\n“[d]etermination of the ownership of assets is at the core of the bankruptcy\n\nprocess. . . . It is therefore crucial, both for the sake of finality and the needs of\n\n\n\n\n 23\n\fdebtors and creditors, that claims to ownership of various assets be determined\n\nin the bankruptcy proceedings.” Id.\n\n For the purposes of judicial estoppel, we typically find that a bankruptcy\n\ncourt “adopted” a particular position “when the bankruptcy court confirms a\n\nplan pursuant to which creditors release their claims against the debtor.” BPP,\n\n859 F.3d at 194 (internal quotation marks and citations omitted). We have\n\nrecently affirmed the use of judicial estoppel in two opinions dealing with failure\n\nto disclose assets in bankruptcy court.\n\n First, in Adelphia Recovery Trust v. Goldman, Sachs & Company, we affirmed\n\nthe use of judicial estoppel where the plaintiff cable company had failed to list on\n\nits bankruptcy filings an account whose ownership was in question. 748 F.3d at\n\n118. Throughout a five-year bankruptcy proceeding, plaintiff never claimed the\n\naccount as one of its assets; however, it later brought suit in the district court\n\nclaiming that the account was its own. We held that judicial estoppel was\n\nproperly invoked, concluding that “[a] different ruling would threaten the\n\nintegrity of the bankruptcy process by encouraging parties to alter their positions\n\nas to ownership of assets as they deem their litigation needs to change.” Id. at\n\n119.\n\n\n 24\n\f Then, in BPP Illinois LLC v. the Royal Bank of Scotland Group PLC, we\n\naffirmed the use of judicial estoppel where a group of hotel-related businesses\n\nbrought a fraudulent inducement suit against several banks, but where, in a\n\nparallel bankruptcy proceeding, their “schedule of . . . assets, including legal\n\nclaims, never listed [the fraudulent inducement] claims,” 859 F. 3d at 191, and\n\nplaintiffs never disclosed the parallel legal proceedings throughout a two-year\n\nbankruptcy proceeding. Id. at 191S94.\n\n In contrast, in Clark v. AII Acquisition, LLC, we held that the district court\n\nabused its discretion where a debtor, “unsure of whether his bankruptcy asset\n\nschedules needed to be updated to reflect his diagnosis [of mesothelioma] and\n\nintention to litigate ¯ alerted his bankruptcy counsel . . . and trusted him to do\n\nwhat was required under the law.” 886 F.3d at 264 (internal quotation marks\n\nomitted). Clark’s counsel failed to convey the information to the bankruptcy\n\ncourt, however, and the district court subsequently dismissed Clark’s personal\n\ninjury suit on judicial estoppel grounds. Id. at 265. Noting that “judicial estoppel\n\nis not a mechanical rule,” id. at 266, we held that “[n]othing in the record . . .\n\nsuggests that the Clarks withheld Mr. Clark’s diagnosis from the bankruptcy\n\n\n\n\n 25\n\fcourt in an effort to game the bankruptcy system,” and that therefore “principles\n\nof equity require the courts to entertain [the] personal injury claims,” id. at 268.\n\n B. Third Circuit Law\n\n We look to the law of the circuit in which the bankruptcy proceeding\n\noccurred “for the limited purpose” of determining whether the failure to list a\n\nparticular claim on a debtor’s bankruptcy filings “is equivalent to an assertion\n\nthat [the debtor] did not have such a claim.” BPP, 859 F.3d at 192.\n\n Because Ashmore’s bankruptcy proceeding was filed in New Jersey, we\n\nexamine whether, under Third Circuit law, failure to list a claim amounts to a\n\ndenial that the claim exists. As discussed below, the Third Circuit’s analysis\n\ndepends on the facts and circumstances of the case, and is intertwined with that\n\ncircuit’s judicial estoppel standard.\n\n More specifically, the Third Circuit has ”expressly left open the question of\n\nwhether . . . nondisclosure [on bankruptcy filings], standing alone, can support a\n\nfinding that a plaintiff has asserted inconsistent positions within the meaning of\n\nthe judicial-estoppel doctrine.” Ryan Ops. G.P. v. Santiam-Midwest Lumber Co., 81\n\nF.3d 355, 362 (3d Cir. 1996). Because the Third Circuit test focuses heavily on the\n\nintersection between inconsistent assertions and bad faith on behalf of the party\n\n\n 26\n\faccused of making the contradictory statements, it has not needed to answer that\n\nnarrow question, but has instead stated that “[a]sserting inconsistent positions\n\ndoes not trigger the application of judicial estoppel unless intentional self-\n\ncontradiction is . . . used as a means of obtaining unfair advantage.” Id. (internal\n\nquotation marks omitted). It has further clarified that “[a]n inconsistent argument\n\nsufficient to invoke judicial estoppel must be attributable to intentional\n\nwrongdoing.” Id. (emphasis added).\n\n In its leading cases on the intersection of judicial estoppel and bankruptcy-\n\nrelated nondisclosures, the Third Circuit has twice considered whether judicial\n\nestoppel was appropriate and answered in the negative. First, in Ryan, the court\n\nconsidered whether the debtor’s failure to list various claims for breach of\n\nwarranty on either his Schedule B or SOFA forms was tantamount to an assertion\n\nthat they did not exist. Id. While Ryan had not yet filed suit at the time he filed\n\nfor bankruptcy, the Schedule B at the time required the debtor to list, inter alia,\n\n“contingent and unliquidated claims of every nature.” Id. The court found that\n\nRyan had violated his statutory duty of full disclosure by failing to list the claim,\n\nbut nevertheless found judicial estoppel inappropriate under the facts of that\n\n\n\n\n 27\n\fcase, noting that Ryan’s lack of disclosure did not provide a basis for inferring his\n\nbad faith. Id. at 364. The court then continued:\n\n [P]olicy considerations militate against adopting a rule\n that the requisite intent for judicial estoppel can be\n inferred from the mere fact of nondisclosure in a\n bankruptcy proceeding. Such a rule would unduly\n expand the reach of judicial estoppel in post-bankruptcy\n proceedings and would inevitably result in the\n preclusion of viable claims on the basis of inadvertent or\n good-faith inconsistencies. While we by no means\n denigrate the importance of full disclosure or condone\n nondisclosure in bankruptcy proceedings, we are\n unwilling to treat careless or inadvertent nondisclosures\n as equivalent to deliberate manipulation when\n administering the “strong medicine” of judicial\n estoppel.\n\nId.\n\n More recently, in In re Kane, the court found no error when a district court\n\ndid not invoke estoppel when a debtor had listed her divorce proceeding on her\n\nSOFA, but not, initially, on her Schedule B. 628 F.3d 631 (3d Cir. 2010). The Kane\n\nCourt noted that Ryan had left open the question of whether nondisclosure alone\n\ncould support a finding of “irreconcilable inconsistency,” and held that judicial\n\nestoppel was not required. Id. at 639. The court emphasized that “a debtor’s\n\nburden is limited to reasonable diligence in completing schedules.” Id. at 643\n\n(internal quotation marks and alterations omitted).\n\n 28\n\f We thus cannot discern in Third Circuit law an absolute answer to the\n\nnarrow question our case law asks us to consider: whether any nondisclosure on\n\nbehalf of Ashmore constitutes an assertion that the litigation does not exist. The\n\nanswer, it seems, is that it depends upon the facts and circumstances of the case,\n\nand how those facts and circumstances relate to the Third Circuit’s distinct test\n\nfor when to apply judicial estoppel’s “strong medicine.” Moreover, in cases not\n\nterribly different from the instant one, the Third Circuit has leaned against its\n\napplication.\n\n Having so established, we proceed to an examination of the four factors\n\nthat our precedent requires us to consider.\n\n C. Application of the Four Factor Test\n\n In its opinion, the district court concluded that each of the factors weighed\n\nin favor of judicial estoppel. Ashmore argues that these conclusions were\n\nerroneous. We will examine each factor in detail.\n\n 1. Advancement of Inconsistent Factual Positions\n\n The first requirement for a finding of judicial estoppel is that “a party’s\n\nlater position is ‘clearly inconsistent’ with its earlier position.” DeRosa v. Nat’l\n\nEnvelope Corp., 595 F.3d 99, 103 (2d Cir. 2010).\n\n\n 29\n\f The district court first analyzed Third Circuit law, concluding that the\n\nfailure to list a pending action in the schedule of assets constitutes an assertion\n\nthat the action does not exist. It based this conclusion on three things: (1) a\n\nreading of the pre-Kane case law which emphasized the debtor’s duty of\n\ndisclosure; (2) two district court cases in which courts have stated, without\n\ncitation, that nondisclosure is an assertion that an action does not exist;9 and (3)\n\nthe contention that Kane is distinguishable from the instant case, based primarily\n\non the fact that the debtor in Kane almost immediately amended her Schedule B\n\n(whereas Ashmore amended it four years after the initial filing).\n\n We find these rationales unpersuasive. First, as noted above, the better\n\nreading of Third Circuit case law suggests that the question is not settled and that\n\nthe court, despite numerous opportunities to opine on the question, has\n\nspecifically left it open, preferring instead to focus its analysis on the bad or good\n\nfaith of the debtor. Without a doubt the Third Circuit emphasizes the critical\n\nnature of the duty of disclosure; it pairs that directive, however, with concern for\n\npreclusion of otherwise viable suits based on “careless or inadvertent\n\n\n\n9\n Bartel ex rel. McQueen v. Charles Kurz & Co., 110 F. Supp. 3d 579, 587 (E.D. Pa.\n2015); Giordano v. Saxon Mortg. Servs., Inc., 2013 WL 12158378, at *7 (D.N.J. Oct.\n31, 2013).\n\n 30\n\fnondisclosures,” Ryan, 81 F.3d at 364, and limits a debtor’s burden to “reasonable\n\ndiligence,” In re Kane, 628 F.3d at 643, particularly in cases where the trustee or\n\nbankruptcy judge has indicated to the debtor that he has satisfied his disclosure\n\nrequirements.\n\n Second, our analysis is not affected by the fact that two district courts in\n\nthe Third Circuit have stated, without supporting citation, that a failure to\n\ndisclose a claim is a representation that such a claim does not exist. Such\n\ndecisions are not binding on us and do not constitute persuasive evidence that\n\nthe Third Circuit did not mean what it has clearly stated.\n\n Third, the district court’s conclusion that Kane is inapposite is entwined\n\nwith its finding that “Ashmore’s conduct at several stages of the Bankruptcy\n\naction and this action suggests an effort to conceal the existence of this action as\n\nan asset and shield it from his creditors.” Edwards v. CGI Grp. Inc., No. 11-cv-\n\n8611(AT), 2018 WL 4043142, at *8 (S.D.N.Y. Aug. 10, 2018). We do not agree that\n\nAshmore’s actions are consistent with an intent to conceal the SOX action’s\n\nexistence. The district court cites three actions taken by Ashmore as supporting\n\nits conclusion: (1) the fact that Ashmore’s initial June 2013 motion to dismiss his\n\nbankruptcy case cited only to “intervening matters;” (2) that Ashmore and\n\n\n 31\n\fEdwards failed to disclose the Letter Agreement to the bankruptcy court; and (3)\n\nthat Ashmore opposed Edwards’s second motion to reopen and argued in the\n\ndistrict court that she had abandoned the action to him. These actions cannot bear\n\nthe weight assigned to them by the district court, especially in light of the\n\nnumerous actions that Ashmore took that demonstrate candor about the SOX\n\nlitigation.\n\n To begin with, we note that in Ashmore’s very first filing, as part of the\n\nSOFA, he listed the SOX litigation by name and docket number. Undoubtedly, he\n\nshould have listed it on the Schedule B. But it is difficult to attribute to a pro se\n\nlitigant a scheme to hide a fact that he disclosed on what would surely appear to\n\na lay person to be a parallel schedule. Moreover, Ashmore did mention the\n\nlitigation to Edwards at the creditors’ meeting, and provided her with a copy of\n\nthe complaint a few weeks later. Shortly thereafter, Edwards provided that\n\ncommunication to the bankruptcy judge and posted it on the docket for all to see.\n\nIt is thus undisputed that by July 2013, a mere three months after his initial filing,\n\nboth Edwards, as the estate trustee, and Judge Stern, the judge presiding over the\n\nbankruptcy action, were fully aware of the SOX litigation, and thus well situated\n\nto protect the creditors’ interests. That Ashmore initially attempted to dismiss his\n\n\n\n 32\n\fbankruptcy case due to “intervening matters,” and did not elaborate on what\n\nthose matters were until asked, is insufficient evidence of an intent to conceal.\n\nIndeed, it is not clear how Ashmore’s effort to undo his bankruptcy filing, rather\n\nthan to press ahead to obtain a discharge, suggests an effort to hide assets in\n\norder to defraud creditors. And clearly, from that point forward, rather than\n\nattempting to conceal the action, nearly every action Ashmore took in\n\nbankruptcy court had the SOX litigation at its centerpiece.\n\n That Edwards initially failed to disclose the Letter Agreement to the\n\nbankruptcy court is probative not of Ashmore’s bad faith or willingness to play\n\n“fast and loose” with the judiciary, but, if anything, of Edwards’s dereliction of\n\nduty under Bankruptcy Rule 9019(a), which requires the court to approve a\n\n“compromise or settlement” with notice to the creditors. Indeed, it is difficult to\n\nfault Ashmore, a pro se debtor, when Edwards was the only party with the\n\nauthority to move the bankruptcy court for approval of the Letter Agreement. See\n\nFed. R. Bankr. P. 9019(A) (“On motion by the trustee and after notice and a hearing,\n\nthe court may approve a compromise or settlement.”) (emphasis added). It is\n\neven more difficult to do so once we also recognize that it is the trustee, not the\n\ndebtor, who is charged with serving as the representative of the creditors and as\n\n\n 33\n\fan officer of the court. Moreover, there is no evidence that Ashmore designed or\n\ndrafted the terms of the Letter Agreement, which instead was sent by Edwards to\n\nAshmore for his signature. Even assuming that Ashmore was the moving force\n\nbehind the Letter Agreement, it is apparent from the face of the Agreement that,\n\nfar from seeking to channel recovery to Ashmore at the creditors’ expense, the\n\nLetter Agreement sought to preserve the creditors’ rights in any settlement.\n\n Finally, Ashmore’s legal argument in the district court that his Letter\n\nAgreement with Edwards prohibited him from arguing about abandonment if\n\nthe SOX litigation generated a significant settlement is just that ¯ a legal\n\nargument. It is not probative of any intention on Ashmore’s part to conceal the\n\nSOX litigation from the bankruptcy court. In fact, in arguing abandonment,\n\nAshmore consistently represented to the district court and the bankruptcy court\n\nthat, under the Letter Agreement, his creditors had a right to any recovery that he\n\nmight obtain upon successful prosecution of the whistleblower suit.\n\n Under these circumstances, it cannot be concluded that Ashmore asserted\n\nclearly inconsistent positions. Ashmore’s position in the district court ¯ that he\n\ndid indeed have a SOX claim ¯ is clearly not inconsistent with: (1) listing the\n\nlitigation on his SOFA at the time of filing; (2) disclosing at least the existence of\n\n\n\n 34\n\fthe litigation at the creditors’ meeting; (3) attaching the complaint at Edwards’s\n\nrequest when he first attempted to dismiss the bankruptcy action; or (4) giving\n\nin-depth testimony at the July 23, 2013, hearing as to the nature of the SOX action\n\nand his desire to control the litigation. The scant facts relied upon by the district\n\ncourt are not sufficient, in the face of these actions, to support a finding that\n\nAshmore intended to persuade the bankruptcy court that he did not have a claim\n\nagainst CGI. We therefore hold that the district court clearly erred in finding that\n\nAshmore’s positions were “clearly inconsistent,” and that it erroneously\n\ninterpreted Third Circuit law when it concluded that his failure to list the claim\n\non his Schedule B was, in and of itself, an assertion that the litigation did not\n\nexist.\n\n 2. Adoption\n\n The second requirement for judicial estoppel is a finding that “the party’s\n\nformer position has been adopted in some way by the court in the earlier\n\nproceeding.” DeRosa, 595 F.3d at 103.\n\n The district court concluded that the bankruptcy court adopted the\n\nposition that there was no SOX litigation, citing several district court cases for the\n\nproposition that “a discharge of debts . . . together with the closing of a\n\n\n\n 35\n\fbankruptcy case without the distribution of an asset, constitutes an adoption of\n\nthe position that the asset does not exist.” Edwards, 2018 WL 4043142, at *8. It thus\n\nfound that, when the bankruptcy court originally discharged Ashmore’s debts\n\nwithout the distribution of any assets on November 18, 2013, it adopted the\n\nposition that the SOX litigation did not exist.\n\n Upon a thorough review of the record, the district court has again sliced\n\nthe argument too narrowly. The record does not tell us why Judge Stern did not\n\ninquire about the SOX litigation when he discharged Ashmore’s debts; it does,\n\nhowever, make clear that Judge Stern was fully aware of, and previously\n\nconsidered thoroughly, the potential of the SOX litigation to generate assets for\n\nthe creditors. It is true that under our case law, his discharge of the debt in 2013\n\ncould be read as an adoption of the position that the litigation did not exist. We\n\ndo not question the holding of Adelphia that “adoption in judicial estoppel is\n\nusually fulfilled when the bankruptcy court confirms a plan pursuant to which\n\ncreditors release their claims against the debtor.” 748 F.3d at 118 (internal\n\nquotation marks and alterations omitted; emphasis added). But given the\n\nmeandering course of this bankruptcy under the inconsistent actions of Edwards,\n\nthe trustee, this is not the usual bankruptcy case. At a minimum, from the time\n\n\n 36\n\fthat the bankruptcy action was reopened in March 2016, “for the limited purpose\n\nof administering the Sarbanes Oxley Litigation,” J.A. 904, there can be no credible\n\nargument that the bankruptcy court had adopted such a position.\n\n Thus, when looked at as a whole, in light of the bankruptcy court’s clear\n\nunderstanding in July 2013 that the litigation existed (despite its willingness later\n\nto discharge Ashmore’s debts), as well as its total clarity as to the potential value\n\nof the litigation upon Edwards’s motion to reopen, we cannot say that the\n\nbankruptcy court adopted a position that the SOX litigation did not exist. We\n\ntherefore conclude that the district court’s analysis of the adoption question was\n\nerroneous.\n\n 3. Unfair Advantage/Detriment\n\n We often require ¯ in addition to the two requirements above ¯ that the\n\n“party seeking to assert an inconsistent position would derive an unfair\n\nadvantage or impose an unfair detriment on the opposing party if not estopped.”\n\nNew Hampshire, 532 U.S. at 751. However, “[w]e have been particularly apt to\n\noverlook the general requirement that a party seeking estoppel have suffered\n\nprejudice where . . . the party to be estopped failed to make the proper\n\ndisclosures during bankruptcy,” Clark, 886 F.3d at 267, and have instead justified\n\n\n 37\n\fthe imposition of judicial estoppel in part on any unfair advantage the estopped\n\nparty may have gained over “former creditors, who had a right to consider the\n\n[undisclosed] claims during the bankruptcy proceeding,” BPP, 859 F.3d at 194.\n\n The district court considered this factor and concluded that “Ashmore\n\nderived an unfair advantage from his failure to disclose this action as an asset to\n\nthe Bankruptcy Court.” Edwards, 2018 WL 4043142, at *9. That conclusion, too, is\n\nerroneous, as the argument that Ashmore gained any advantage at the expense\n\nof his creditors is theoretical and speculative.\n\n Although Ashmore was initially discharged of his debts in September 2013,\n\nthe Letter Agreement provided that he would consent to reopen the case if he\n\nsucceeded in the SOX litigation. And in any event, the bankruptcy was later\n\nreopened and the creditors were advised of the litigation and invited to submit\n\nproofs of claim against the estate. Though it recognized these facts, the district\n\ncourt analyzed Ashmore’s potential unfair advantage over his creditors by\n\ncomparing the original amount owed at the time of the 2013 filing (over $290,000)\n\nwith the roughly $50,000 in claims that were filed upon the reopening of his\n\nbankruptcy action. It thus inferred that Ashmore was able to save nearly $240,000\n\n\n\n\n 38\n\fthrough his alleged attempts to conceal the action from the creditors. We cannot\n\nagree.\n\n As an initial matter, and as the district court referenced in a footnote, of the\n\n$293,784 Ashmore originally listed on his Schedule F, $135,878 was for\n\nnondischargeable student loans. Accordingly, the discharge did not affect\n\nAshmore’s liability for that amount. Roughly $93,000 of the original amount\n\nlisted represented debts owed to his wife and wife’s attorney as part of a divorce\n\nproceeding.10 Ashmore later represented to the district court that “in May 2015,\n\n[he] reached an agreement with his former wife that resolve[d] the economic and\n\nother claims between them, including her claims in bankruptcy.” 1:11-cv-08611-\n\nAT (S.D.N.Y.), ECF No. 179, n.7. CGI offers no evidence or analysis to discredit\n\nthat representation.\n\n Of the remaining roughly $65,000 that Ashmore owed to creditors, claims\n\nwere filed in the amount of $50,356.88. To conclude that Ashmore was unfairly\n\nadvantaged because no claims were filed for the other roughly $15,000 is to\n\n\n\n10\n More specifically, Ashmore’s Schedule F lists the following potential claims:\n$49,530 to Ashmore’s ex-wife as part of a divorce judgment; $30,000 for\nAshmore’s ex-wife’s legal fees; $12,046 for Ashmore’s share of a court-appointed\nattorney for his children during the divorce; and $1634 to a “charged off account\nduring divorce due to ex-wife charges.” J.A. 104S05. This totals $93,210.00.\n\n 39\n\fengage in an unduly speculative enterprise. Many of the claims were for as little\n\nas $125 or $1000. There is substantial uncertainty as to whether the creditors who\n\nchose not to file a proof of claim in 2016 after being advised of the potential value\n\nof the whistleblower suit might have found it worthwhile to do so in 2013 had\n\nthey known about the same suit then. Our precedents, Adelphia and BPP, deal\n\nwith numbers at a completely different scale. Moreover, they deal with situations\n\nwhere the litigation was never disclosed. Here, every creditor was notified in 2016\n\nof the opportunity to file a claim in light of a potentially valuable SOX litigation.\n\nThe reasons individual creditors filed or did not file are presumably various;\n\nthere is no evidence, however, that any of them were disadvantaged by anything\n\nthat happened in either proceeding.\n\n Moreover, CGI has failed to demonstrate that it has been unfairly\n\ndisadvantaged by Ashmore’s actions.11 While we have no occasion to address the\n\n\n\n11\n We find no merit in CGI’s argument, on appeal, that it was disadvantaged\nbecause of “Ashmore’s lack of standing and his continued attempts to regain\ncontrol of this litigation.” Appellee Br. 53S54. The parties on both sides have\ntaken strategic approaches that generated costs for the other side, as is the case in\nall litigation. That cannot be what we mean when we discuss an “unfair\ndetriment” that would lead to judicial estoppel. Whether Ashmore or Edwards\ncontrolled the litigation, the plaintiff’s position in that litigation was adverse to\nCGI, both had an interest in winning a substantial award at CGI’s expense, and\nCGI’s chances of prevailing on the SOX claim were unaffected.\n\n 40\n\fmerits of Ashmore’s underlying suit, it does not escape our notice that CGI was\n\ndenied summary judgment on Ashmore’s SOX claim. To estop Ashmore from\n\npursuing a non-frivolous claim based on a speculative and hypothetical\n\nunfairness to the creditors who chose not to file a claim even after being advised\n\nthat the estate had assets after all, and thus to terminate a potentially meritorious\n\nsuit, does not comport with judicial estoppel’s proper role. Indeed, it risks\n\n“do[ing] inequity in the name of equity.” Clark, 886 F.3d at 266 (internal quotation\n\nmarks omitted).\n\n 4. Impact on Judicial Integrity\n\n Finally, “because [judicial estoppel] is primarily concerned with protecting\n\nthe judicial process, relief is granted only when the risk of inconsistent results\n\nwith its impact on judicial integrity is certain.” Adelphia, 748 F.3d at 116\n\n(alterations and internal quotation marks omitted).\n\n The district court here concluded that invoking judicial estoppel was\n\nnecessary to protect judicial integrity, holding that to “[a]llow[] a debtor to\n\nengage in such conduct ‘would only diminish [his] incentive to provide a true\n\nand complete disclosure of [his] assets to the bankruptcy courts.’” Edwards, 2018\n\n\n\n\n 41\n\fWL 4043142, at *9, quoting Azuike v. BNY Mellon, 962 F. Supp. 2d 591, 599\n\n(S.D.N.Y. 2013).\n\n We disagree that judicial integrity requires dismissal here. Both the\n\nbankruptcy court and Edwards made a series of strategic decisions in an attempt\n\nto best preserve the SOX litigation as a potential asset for Ashmore’s creditors,\n\nconcluding in an official settlement whereby Ashmore paid the claims of all\n\ncreditors who sought relief,12 and Edwards officially abandoned the litigation to\n\nhim. To now find that Ashmore concealed the action from that same court would\n\nundermine the years of hearings and motions on exactly this issue.\n\n In Azuike, the district court case from which the opinion below quotes, the\n\nfacts tell a different story. There, the plaintiff, who was represented by counsel at\n\nthe time of his bankruptcy filing, failed to list his EEOC claim on either his SOFA\n\nor his Schedule B, an omission that was not remedied at any time prior to the\n\nclosing of his bankruptcy case. Id. at 594. He reopened his bankruptcy case and\n\ndisclosed the action to the trustee and bankruptcy court only when his adversary\n\n\n\n\n12\n The Department of Education filed a proof of claim for the entire balance due\nand owing on Ashmore’s student loans; however, the bankruptcy court\ndetermined on June 29, 2016, that the student loans, on which Ashmore was not\nin default, were nondischargeable under the Bankruptcy Code.\n\n 42\n\fin district court challenged his standing. Id. at 596. Here, plaintiff filed pro se, did\n\ndisclose the action in his initial filings, did disclose in considerable detail to both\n\nEdwards and the bankruptcy court the nature of the SOX action, and even sought\n\nto withdraw his petition rather than seek a discharge, long before the bankruptcy\n\ncourt decided to grant a (later revoked) discharge.\n\n Thus, the concerns for judicial integrity cited by the district court, based on\n\na case in which a pending claim was never disclosed to the bankruptcy court, are\n\nconsiderably less weighty under the distinct factual circumstances presented by\n\nthis case.\n\n D. Previous Cases\n\n Our conclusion is strengthened by critical distinctions between this case\n\nand the other bankruptcy cases in which this court has approved the use of\n\njudicial estoppel.\n\n The most salient distinction is that in each other case in which we have had\n\nthe opportunity to consider nondisclosure of a lawsuit in a bankruptcy\n\nproceeding, the lawsuit has been fully nondisclosed ¯ that is, the action was\n\nmentioned neither on the Schedule B nor on the SOFA, nor at the meeting of\n\ncreditors, nor at any point in the bankruptcy proceedings. That was the case both\n\n\n 43\n\fin BPP, where the plaintiff at no point in the bankruptcy proceedings disclosed\n\nany potential claim relating to LIBOR manipulation, 859 F.3d at 192, and in\n\nAdelphia, where the plaintiff at no time during its bankruptcy proceedings\n\nclaimed ownership of the account in question, 748 F.3d at 118. It was true even in\n\nClark, in which we found judicial estoppel wrongly invoked despite the fact that\n\nthe debtor’s personal injury lawsuit was never disclosed to the bankruptcy court.\n\n886 F.3d at 268.\n\n Two of our sister circuits have dealt with more analogous circumstances, in\n\nwhich pending litigation was orally disclosed to the trustee, but not included on\n\nthe written bankruptcy filings. In Spaine v. Community Contacts, Inc., 756 F.3d 542\n\n(7th Cir. 2014), the plaintiff, a pro se bankruptcy filer, failed to list a pending\n\nemployment discrimination claim on either her Schedule B or her SOFA, id. at\n\n544. She had, however, “told the bankruptcy trustee about her lawsuit,” and\n\nclaimed in an affidavit that she had not been “told by the bankruptcy court of\n\nany need to amend her schedules.” Id. at 545. The Spaine Court, noting that the\n\nevidence showed only “incomplete schedules that were timely corrected through\n\nan oral disclosure,” concluded that in order for judicial estoppel to apply, the\n\ndefendant would have needed to “show more than an initial nondisclosure on a\n\n\n 44\n\fbankruptcy schedule.”13 Id. at 547S48. It then went on to state that “Spaine’s\n\ncreditors were not and could not have been injured by incomplete Chapter 7\n\nschedules that were orally corrected before Spaine received a discharge,” and\n\ncontrasted the case to others in which “debtors engaged in affirmative\n\nmisrepresentations,” including those who denied their pending lawsuits when\n\nasked directly by the trustee. Id. It held that where, in contrast, the evidence was\n\n“limited to an omission followed by a truthful oral disclosure,” judicial estoppel\n\nwas no longer the proper remedy. Id. at 548.\n\n The D.C. Circuit reached a contrary result in Marshall v. Honeywell\n\nTechnology Systems Inc., 828 F.3d 923, 925 (D.C. Cir. 2016). There, too, plaintiff\n\nfailed to disclose an employment discrimination suit on either her SOFA or her\n\nSchedule B, but did make an oral disclosure. Id. The court there found judicial\n\nestoppel appropriate, concluding, in contrast to the Seventh Circuit, that “oral\n\ndisclosure to the trustee did not constitute notice to her creditors and could not\n\ncorrect the false information she conveyed on her schedules.” Id. at 930. Its\n\nconviction that judicial estoppel was appropriate was strengthened by the facts of\n\n\n13\n The Court did note that it would have reached a different result “[i]f there were\nundisputed evidence that Spaine intentionally concealed her claim.” Spaine, 756\nF.3d at 548.\n\n 45\n\fthat case in which the debtor had listed some, but not all, of her administrative\n\nproceedings. Id. at 931. This led the Marshall Court to the conclusion that her\n\nomission was not likely the product merely of inadvertence or mistake. Id. at\n\n931S32.\n\n We conclude that the circumstances here are more like those in Spaine, and,\n\nlike the Seventh Circuit, we find judicial estoppel inappropriate. Indeed,\n\nAshmore was in some ways more forthcoming than Spaine: unlike Spaine,\n\nAshmore’s pending litigation was listed in his original bankruptcy filings. We\n\ntherefore think that Ashmore’s arguments against judicial estoppel are stronger\n\nthan Spaine’s were and, as noted above, we do not think the record supports a\n\nfinding that there was “undisputed evidence that [Ashmore] intentionally\n\nconcealed [his] claim.” Spaine, 756 F.3d at 548.\n\n We do not discount or deprecate the failure to accurately list a debtor’s\n\nassets. On the contrary, we recognize again today that full disclosure by debtors\n\nis essential to the proper functioning of the bankruptcy system and that,\n\ntherefore, judicial estoppel is an appropriate remedy for those who play “fast and\n\nloose” with the disclosure requirements. But we balance that concern against our\n\nconviction that the “exact criteria for invoking judicial estoppel will vary based\n\n\n 46\n\fon ‘specific factual contexts,’ and that ‘courts have uniformly recognized that its\n\npurpose is to protect the integrity of the judicial process by prohibiting parties\n\nfrom deliberately changing positions according to the exigencies of the\n\nmoment.’” Adelphia, 748 F.3d at 116, quoting New Hampshire, 532 U.S. at 749S51.\n\nWe further reaffirm that “judicial estoppel is not a mechanical rule.” Clark, 886\n\nF.3d at 266.\n\n We therefore hold that where, as here, a pro se debtor has listed his\n\npending litigation on the SOFA, rather than the Schedule B as it was constituted\n\nat the time of Ashmore’s filing, and then disclosed it to the trustee and the\n\nbankruptcy court prior to discharge of his debt, and the trustee and the\n\nbankruptcy court were on sufficient notice to take steps to protect the creditors’\n\ninterests, the debtor is not estopped from pursuing that litigation by virtue of the\n\ndoctrine of judicial estoppel.14 For estoppel to apply, there must be greater indicia\n\nthan presented here of an intent to deceive the court for the debtor’s benefit.15\n\n\n\n14\n We express no view as to whether different inferences would be warranted if a\npetitioner failed to list a lawsuit on the present Schedule B form, which explicitly\nasks for information about legal claims.\n15\n We note that in the past we have referenced a “good faith” exception to the\ndoctrine of judicial estoppel. See Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d\nCir. 1997). We have rarely invoked this exception, or explored its limits, and need\nnot do so today, as we find that the affirmative requirements for judicial estoppel\n\n 47\n\fIII. Abandonment under Section 554(c)\n\n Ashmore also appeals the May 9, 2016, Order of the district court in which\n\nit found that he was without standing to pursue the SOX action, the action never\n\nhaving been properly abandoned to him by Edwards. He argues that his oral\n\ndisclosure and disclosure on the SOFA is adequate for the purposes of the\n\n§ 521(a)(1) “scheduling” that is required by § 554(c).\n\n That Order, however, is moot. Since it was issued, Edwards has\n\nunquestionably effected a successful abandonment of the litigation under\n\n§ 554(a). There is thus no remaining question as to Ashmore’s standing. We\n\ntherefore leave for another day the question of whether an asset disclosed to the\n\nbankruptcy court orally and on a SOFA, but not on a Schedule B, is abandoned to\n\nthe debtor.16\n\n\n\n\nwere not met.\n16\n We note that in Ayazi v. New York City Board of Education, 315 F. App’x 313, 315\n(2d Cir. 2009), a panel of this court found, by summary order, that such\ncircumstances would not lead to abandonment by operation of law, emphasizing\nthat the “strict formalities surrounding abandonment exist for the protection of\nthe creditors.”\n\n 48\n\fIV. Contract Claims\n\n Ashmore also appeals the grant of summary judgment to CGI on his\n\ncontract claims, arguing that material questions of fact remain as to whether CGI\n\ndenied him a bonus to which he was contractually entitled.\n\n Ashmore’s offer letter states as follows:\n\n You will be eligible to be a participant in the CGI-Profit\n Participation Program. Through this program, you can\n earn an annual bonus based on the achievement of\n certain financial results, client satisfaction, member\n satisfaction and other measures tied to your\n performance. This program is dependent upon the\n success of the company, your business unit and your\n own performance.\n\nJ.A. 295. Ashmore alleges that CGI breached the terms of the offer letter by failing\n\nto provide him a bonus under this program. He argues that material questions of\n\nfact remain as to his eligibility for a bonus. We disagree.\n\n First, by its very terms, the bonus is discretionary, and dependent on\n\nseveral factors, including both Ashmore’s and the company’s performance.\n\nSecond, evidence was presented that it was the clearly-stated policy of\n\nAshmore’s group to offer a bonus only after an employee had worked for at least\n\n\n\n\n 49\n\fsix months and was still employed at the end of the fiscal year.17 Ashmore\n\npresented no evidence to the contrary.\n\n In this case, Ashmore began work in May 2009. Having not worked for\n\nCGI for 6 months by the close of that fiscal year ¯ September 30, 2009 ¯ he was\n\nnot eligible for a bonus at that time. While Ashmore worked for more than six\n\nmonths in the 2009S2010 fiscal year, he was fired before the end of the fiscal year,\n\nand thus he was not eligible for a bonus that year. Although Ashmore argues that\n\nthe offer letter requires him to receive a bonus, he points to no evidence\n\nsupporting that interpretation. We thus find that there is no material question of\n\nfact as to whether CGI breached the terms of the offer letter, and affirm the\n\ndistrict court’s grant of summary judgment on Ashmore’s contract claims.\n\nV. Judicial Reassignment\n\n Finally, Ashmore requests reassignment to a new judge, arguing that his\n\ncase “deserves a fresh look by a different pair of eyes,” citing Armstrong v.\n\nGuccione, 470 F.3d 89, 113 (2d Cir. 2006). He states without support that Judge\n\n\n\n\n17\n On December 14, 2009, Ashmore’s supervisor, Marybeth Carragher, sent the\nfollowing email: “It has always been our policy . . . not to give [bonuses to] those\nmembers on board less than 6 months of the [fiscal year].” J.A. 304.\n\n 50\n\fTorres has “shown . . . animus to Ashmore,” such that “her impartiality might\n\nreasonably be questioned.” Appellant Br. 68. We disagree.\n\n The premise of Ashmore’s request is that reassignment is needed because\n\nthe “facts might reasonably cause an objective observer to question the judge’s\n\nimpartiality.” Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010). But Ashmore\n\nhas not pointed to any such facts, nor could he on the record before us. While\n\nJudge Torres found that Ashmore had engaged in deceptive conduct, absolutely\n\nnothing in the record suggests that her judgment was affected by impartiality or\n\nanimus. We therefore deny Ashmore’s request for reassignment.\n\n CONCLUSION\n\n For the foregoing reasons, we VACATE the judgment of the district court\n\ninsofar as it applies either judicial estoppel or lack of standing to dismiss\n\nAshmore’s claims under the Sarbanes-Oxley Act, AFFIRM the judgment\n\ndismissing his breach of contract claim, and remand for further proceedings\n\nbefore Judge Torres consistent with this opinion.\n\n\n\n\n 51\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Benjamin J. ASHMORE, Sr., Plaintiff-Appellant, Barbara A. Edwards, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin Jeffrey Ashmore, Plaintiff, v. CGI GROUP, INC., CGI Federal, Inc., Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-2392-cv\\nAshmore v. CGI Group\\n\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n (Argued: March 6, 2019 Decided: May 8, 2019)\\n\\n Docket No. 18-2392-cv\\n\\n\\n\\n BENJAMIN J. ASHMORE, SR.,\\n Plaintiff- Appellant,\\n\\n BARBARA A. EDWARDS, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin\\n Jeffrey Ashmore,\\n Plaintiff,\\n\\n — v. —\\n\\n CGI GROUP, INC., CGI FEDERAL, INC.,\\n\\n Defendants-Appellees.*\\n\\n\\n\\n\\n*\\n The Clerk of Court is respectfully directed to amend the caption as listed above.\\n\\fB e f o r e:\\n\\n JACOBS and LYNCH, Circuit Judges, and HALL, District Judge.**\\n\\n Plaintiff-Appellant Benjamin J. Ashmore, Sr., instituted this whistleblower\\naction under Section 806 of the Sarbanes-Oxley Act against defendants-appellees\\nCGI Group, Inc. and CGI Federal, Inc. (collectively, “CGI”), complaining that he\\nwas unlawfully fired in retaliation for his complaints about and objections to an\\nallegedly fraudulent scheme developed by CGI’s executives. The United States\\nDistrict Court for the Southern District of New York (Analisa Torres, Judge) held\\nthat Ashmore’s Sarbanes-Oxley claims survived summary judgment, but later\\ndismissed Ashmore as a plaintiff for lack of standing due to his parallel\\nbankruptcy proceedings. After Ashmore’s bankruptcy case was closed, he moved\\nto be substituted in as the proper party-in-interest. The district court granted his\\nmotion but then dismissed the case in its entirety on the grounds of judicial\\nestoppel. Because we find that the district court exceeded its discretion in\\ninvoking the judicial estoppel doctrine, we VACATE that judgment and\\nREMAND for further proceedings. Additionally, we AFFIRM the district court’s\\ngrant of partial summary judgment to CGI on Ashmore’s state-law breach of\\ncontract claim, and conclude that the district court’s order dismissing Ashmore\\nas a plaintiff is rendered moot by virtue of later developments.\\n\\n\\n\\n ROBERT L. HERBST, Herbst Law PLLC, New York, New York,\\n for Plaintiff-Appellant.\\n\\n ZACHARY D. FASMAN (Andrew M Sherwood, on the brief),\\n Proskauer Rose, LLP, New York, New York, for Defendants-\\n Appellees.\\n\\n\\n\\n\\n**\\n Judge Janet C. Hall, of the United States District Court for the District of\\nConnecticut, sitting by designation.\\n\\n 2\\n\\fGERARD E. LYNCH, Circuit Judge:\\n\\n This case requires us to consider the proper application, in the context of a\\n\\npro se debtor’s bankruptcy court filings, of judicial estoppel, a doctrine developed\\n\\nto prevent litigants who “play[] fast and loose with the courts from gaining\\n\\nunfair advantage through the deliberate adoption of inconsistent positions in\\n\\nsuccessive suits.” Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir. 2000). At\\n\\nissue here is whether a debtor whose initial bankruptcy filings do not properly\\n\\nlist his pending district court litigation as an “asset,” but who elsewhere\\n\\ndisclosed that lawsuit, both in his initial filings and to the trustee and bankruptcy\\n\\ncourt on numerous subsequent occasions, has concealed the litigation from the\\n\\nbankruptcy court such that he should be prevented from proceeding in district\\n\\ncourt with that suit. We conclude that he should not, and that the district court\\n\\nerred when it applied judicial estoppel to dismiss plaintiff’s suit.\\n\\n In addition, we find that the district court properly granted summary\\n\\njudgment to the defendants on plaintiff’s pendent state-law contract claim.\\n\\nAccordingly, we VACATE the judgment of the district court in part, AFFIRM in\\n\\npart, and REMAND the case to the district court for further proceedings.\\n\\n\\n\\n\\n 3\\n\\f BACKGROUND\\n\\n This case arises out of two separate proceedings ¯ one, a lawsuit filed by\\n\\nBenjamin J. Ashmore, Sr., under Section 806 of the Sarbanes-Oxley (“SOX”) Act\\n\\nin the Southern District of New York (“SDNY”) in November 2011, and the other,\\n\\na voluntary pro se Chapter 7 bankruptcy case filed in the Bankruptcy Court for\\n\\nthe District of New Jersey in April 2013. At issue in this appeal is whether\\n\\nAshmore made inconsistent assertions in the two proceedings such that his\\n\\nSDNY case should be dismissed on judicial estoppel grounds.\\n\\nI. Ashmore’s Sarbanes-Oxley Action\\n\\n On November 28, 2011, Ashmore filed a whistleblower complaint in the\\n\\nSouthern District of New York (Analisa Torres, Judge), in which he alleged that\\n\\ndefendants CGI Group Inc. and CGI Federal Inc. (collectively, “CGI”) had\\n\\nimproperly terminated his employment in retaliation for various actions he took\\n\\nupon discovering that CGI was developing fraudulent schemes to generate\\n\\nbusiness. According to Ashmore, CGI, a subcontractor for various public housing\\n\\nagencies, feared losing business due to a 2009 change in policy at the U.S.\\n\\nDepartment of Housing and Urban Development that would limit the number of\\n\\nprojects any individual subcontractor could bid on. Ashmore asserted that he\\n\\n\\n 4\\n\\fraised objections to the legality of a proposal that would allow CGI to counter the\\n\\neffects of the new rule by having employees enter bids through sham companies,\\n\\nand later transfer any resulting contracts back to CGI. It is undisputed that the\\n\\nalleged scheme was never implemented. Ashmore alleges that he was fired in\\n\\nretaliation for his objections to and complaints about the fraudulent scheme.\\n\\n In addition to his SOX claim, Ashmore brought a contract claim for a bonus\\n\\nhe claimed he was owed upon termination.\\n\\nII. Ashmore’s Bankruptcy Action\\n\\n On April 8, 2013, Ashmore electronically filed his Chapter 7 bankruptcy\\n\\npetition in the Bankruptcy Court for the District of New Jersey. When a debtor\\n\\nfiles for bankruptcy, he or she is required to fill out a series of forms and\\n\\nschedules. At the time of Ashmore’s filing, these forms included ten schedules,\\n\\non which various assets and liabilities were to be listed, including, inter alia,\\n\\n“Schedule A ¯ Real Property,” “Schedule B ¯ Personal Property,”and a\\n\\n“Statement of Financial Affairs.”\\n\\n At the time, the Schedule B form listed 34 specific categories of assets,\\n\\nincluding, inter alia, cash, bank accounts, household goods and furnishings, furs,\\n\\nannuities, patents, license, alimony, interests in partnerships, farm supplies, and\\n\\n\\n 5\\n\\f“[o]ther contingent and unliquidated claims of every nature, including tax\\n\\nrefunds, counterclaims of the debtor, and rights to setoff claims.” Joint Appendix\\n\\n(“J.A.”) 96. It also contained a miscellaneous category for “[o]ther personal\\n\\nproperty of any kind not already listed.” J.A. 97. It did not specifically ask the\\n\\ndebtor to list lawsuits to which he or she was a party, although Ashmore does\\n\\nnot now dispute that a lawsuit seeking damages for wrongful termination of\\n\\nemployment is an asset that should have been listed on the Schedule B.1 In\\n\\ncontrast, the Statement of Financial Affairs (“SOFA”) directed the debtor to\\n\\nanswer a number of specific questions, including, inter alia, to disclose “all suits\\n\\nand administrative proceedings to which the debtor is or was a party within one\\n\\nyear immediately preceding the filing of this bankruptcy case.” J.A. 123.\\n\\n While filling out the paperwork, Ashmore made the decision ¯ or error ¯\\n\\nthat gives rise to the present issue. Ashmore listed the SOX litigation on the\\n\\nSOFA; he wrote both the caption and docket number and indicated that the suit\\n\\nwas employment-related. He did not, however, list it on his Schedule B.\\n\\n\\n\\n\\n1\\n The Schedule B form was amended in 2015, and now specifically directs debtors\\nto list all “[c]laims against third parties, whether or not you have filed a lawsuit\\nor made a demand for payment.” Appellant Br. 17.\\n\\n 6\\n\\f Additionally, Ashmore was required to list his liabilities. He listed a total\\n\\nof $293,784 in unsecured debt, of which $135,878 was attributable to\\n\\nnondischargeable student loans and a significant portion was related to his recent\\n\\ndivorce.\\n\\n On April 10, 2013, Barbara Edwards was appointed interim trustee of the\\n\\nestate under Section 701 of the Bankruptcy Code. She continued to serve as\\n\\ntrustee, under Section 702(d), for the remainder of the relevant period.\\n\\n A. Meeting of Creditors\\n\\n On May 13, 2013, as required by Bankruptcy Code Section 341(a), Edwards\\n\\nconvened a meeting of creditors. It appears that no creditor attended this\\n\\nmeeting. Ashmore attended, as required, and disclosed to Edwards that he\\n\\nwould be unavailable for a future meeting due to a scheduled deposition in the\\n\\nSouthern District of New York. The precise contours of how extensively the SOX\\n\\nlitigation was discussed are not clear from the record, but it is undisputed by all\\n\\nthat it was at least referenced at the May 13 meeting.2\\n\\n\\n2\\n In a certification given in 2017, Edwards stated that Ashmore “testified\\nregarding [the SOX] litigation at the first meeting of creditors.” Joint Appendix\\n(“J.A.”) 1368. In addition, in a certification given on May 22, 2013, Edwards stated\\nthat Ashmore had a scheduling conflict due to “pending depositions in a Court\\naction in the Southern District of New York District Court.” J.A. 154. In its\\n\\n 7\\n\\f B. Motion to Dismiss Bankruptcy Case\\n\\n On June 19, 2013, Ashmore moved to dismiss his bankruptcy action. In his\\n\\nmotion papers he stated that “due to intervening matters,” he would “now be\\n\\nable to meet [his] obligations . . . . My filing was a mistake.” J.A. 185. Ashmore\\n\\ndid not specify the nature of the “intervening matters.” Edwards therefore asked\\n\\nAshmore to clarify, “so that both the Trustee and this Court can have a full\\n\\nunderstanding of the relevant circumstances.” J.A. 186.\\n\\n Accordingly, on June 21, 2013, Ashmore sent an explanatory letter to which\\n\\nhe attached the SOX complaint. Edwards published the letter on the bankruptcy\\n\\n\\n\\n\\nAugust 10, 2018, Opinion, the court did not specifically address the credibility of\\nEdwards’s statements, but noted that the 2013 certification did not “assert that\\nAshmore discussed the nature of this action, revealed that he was Plaintiff in this\\naction, or otherwise indicated that this action was an asset of his estate at the\\n§ 341 meeting.” Edwards v. CGI Grp. Inc., No. 11-cv-8611(AT), 2018 WL 4043142, at\\n*7 n.4 (S.D.N.Y. Aug. 10, 2018). It further disregarded the recitals in the\\nStipulation and Consent Order from the Bankruptcy Court that “Ashmore\\ndisclosed the SOX action . . . in his testimony at the first meeting of creditors” as\\nthe Consent Order had specifically noted that “the Stipulated Facts are not\\nbinding upon CGI, nor shall the Stipulated Facts have or be deemed to have any\\npreclusive effect with respect to CGI in the SOX action (or otherwise).” Id.,\\nquoting J.A. 1103, 1107. It thus concluded that there was “no evidence . . . that\\nAshmore disclosed this action as an asset at the § 341 meeting of creditors.” Id., at\\n*7. We conclude that the fairest reading of the record is that Ashmore made some\\ndisclosure at the meeting that was sufficient to put Edwards on notice of the SOX\\nlitigation, but that did not qualify as a “full” discussion of the case.\\n\\n 8\\n\\fcourt docket on July 17, 2013. She then proceeded to oppose dismissal of the\\n\\nbankruptcy petition, based on the fact that “it [was] now apparent that\\n\\n[Ashmore] is the plaintiff in a substantial whistleblower lawsuit,” and that the\\n\\nlawsuit was a potential asset that she should administer on behalf of the estate.\\n\\nJ.A. 186S87.\\n\\n Judge Morris Stern held a hearing on the motion to dismiss on July 23,\\n\\n2013, of which Ashmore’s creditors were notified. The colloquy at the hearing\\n\\nfocused on the SOX litigation. Ashmore testified at length about the\\n\\nwhistleblower case, including a pending summary judgment motion made by\\n\\nCGI, emphasizing that “trial . . . is right around the corner,” and that he therefore\\n\\nhad “every reason to believe that the unsecured creditors in [his] bankruptcy\\n\\npetition have every ability to be paid.” J.A. 194S95. He argued for dismissal so\\n\\nthat he could retain control of the lawsuit. For her part, Edwards appears to have\\n\\nbelieved that the “whistleblower lawsuit . . . now appears to be ready to be\\n\\nsettled” and that therefore the case should not be dismissed so that she could\\n\\neffect an “orderly distribution of the asset.” J.A. 191.\\n\\n After hearing argument from both sides, Judge Stern denied the motion,\\n\\nbut notified Ashmore that if disagreements arose between Ashmore and\\n\\n\\n 9\\n\\fEdwards as to the management of the case or the appropriate settlement number,\\n\\nAshmore could return to the bankruptcy court for assistance.\\n\\n After denial of the motion, Ashmore notified the district court that he was\\n\\ninvolved in bankruptcy proceedings and requested a 30-day stay for Edwards to\\n\\nretain counsel and move to be substituted in as the party-in-interest. Judge Torres\\n\\ngranted the stay on September 11, 2013.\\n\\n C. Letter Agreement\\n\\n On September 16, 2013, after ascertaining from Ashmore’s counsel that the\\n\\nSOX action was not in fact nearing an imminent conclusion, Edwards reversed\\n\\ncourse, writing to Ashmore that she was “willing to close the bankruptcy case\\n\\nand not administer the asset at this time,” so that Ashmore could “continue with\\n\\nthe litigation without any delay or jeopardy.” J.A. 200. Her proposal was\\n\\nconditioned upon Ashmore’s willingness to consent to the reopening of the case\\n\\nand “not claim that the litigation was abandoned by [her] closing of the case,” if\\n\\n“the amount [he] collect[s] from the litigation generates a significant distribution\\n\\nto unsecured creditors.” J.A. 200. Ashmore promptly agreed to the terms by\\n\\nsigning the letter and returning it to Edwards.\\n\\n\\n\\n\\n 10\\n\\f Under Section 554 of the Bankruptcy Code, property of the bankruptcy\\n\\nestate can be abandoned in two distinct ways: (1) after notice and a hearing, “the\\n\\ntrustee may abandon any property of the estate that is burdensome to the estate\\n\\nor that is of inconsequential value and benefit to the estate,” § 554(a), and (2) by\\n\\noperation of law, “any property scheduled under section 521(a)(1)3 of this title\\n\\nnot otherwise administered at the time of the closing of a case is abandoned to\\n\\nthe debtor,” § 554(c).\\n\\n D. Closing of Bankruptcy Case\\n\\n On September 17, 2013, Edwards filed a “Report of No Distribution” with\\n\\nthe bankruptcy court in which she stated that “there is no property available for\\n\\ndistribution,” and that the estate had thus been “fully administered” under\\n\\nFederal Rule of Bankruptcy Procedure 5009. J.A. 36. She did not mention the SOX\\n\\nlitigation. The same day, she notified Judge Torres that she had closed the\\n\\nbankruptcy proceeding and that the SOX litigation could thus “proceed outside\\n\\nof the Bankruptcy Court jurisdiction.” J.A. 201.\\n\\n\\n\\n\\n3\\n Section 521(a)(1) requires the debtor, as part of his or her bankruptcy petition, to\\nfile, inter alia, a schedule of assets and liabilities, a schedule of current income and\\ncurrent expenditures, and a statement of the debtor’s financial affairs.\\n\\n 11\\n\\f Without any further mention of, or inquiry into, the SOX litigation, Judge\\n\\nStern granted Ashmore’s discharge on November 18, 2013, and notified the\\n\\ncreditors on November 20, 2013. On November 22, 2013, the bankruptcy court\\n\\nissued a final decree that Ashmore’s bankruptcy estate had been administered\\n\\nfully, that Edwards had been discharged, and that the case was closed. As of that\\n\\ntime, Ashmore had listed $296,347 in debt to 29 creditors.\\n\\nIII. The Intersection of the Two Cases\\n\\n After this, the cases wound themselves into a tight spiral. We summarize\\n\\nthe most notable aspects of the twin procedural histories below.\\n\\n A. Edwards Moves to Reopen the Bankruptcy Case\\n\\n For approximately two years after the discharge decree, Ashmore’s SOX\\n\\ncase proceeded in the SDNY with no further reference to his standing to maintain\\n\\nthe action or to his bankruptcy filings. In August 2015, however, CGI retained\\n\\nnew counsel, who promptly contacted Edwards to inform her that Judge Torres\\n\\nwas soon to issue a decision on their summary judgment motion and that there\\n\\nhad been “substantial [settlement] offers . . . made by the CGI defendants, all of\\n\\nwhich were rejected by Mr. Ashmore.” J.A. 478.\\n\\n\\n\\n\\n 12\\n\\f In response, Edwards immediately moved to reopen the bankruptcy case,\\n\\nattaching the September 16, 2013 letter agreement (the “Letter Agreement”) and\\n\\nstating that she had been “advised by defense counsel in that case that . . .\\n\\nsettlement offers over $800,000.00 have been made.” J.A. 483.\\n\\n The next day, on September 23, 2015, Judge Torres denied CGI’s motion for\\n\\nsummary judgment on the SOX claims, finding that genuine issues of material\\n\\nfact existed.4 CGI immediately moved to stay all proceedings pending the\\n\\nresolution of Edwards’s motion to reopen Ashmore’s bankruptcy case. Judge\\n\\nTorres granted the motion.\\n\\n B. Edwards Withdraws Motion to Reopen\\n\\n Upon learning that Judge Torres had stayed the SOX case, Edwards\\n\\nwithdrew her motion to reopen the bankruptcy proceedings and contacted the\\n\\nSDNY with a clear statement of intent:\\n\\n It was [Edwards’s] intent at all times that Mr. Ashmore\\n would prosecute the Litigation against his former\\n employer as the plaintiff and that his bankruptcy estate\\n would retain an interest in the proceeds of any\\n recovery. . . . Edwards . . . supports the decision to\\n proceed to trial in light of the settlement offers that were\\n discussed. . . . Edwards withdrew her motion to reopen\\n\\n4\\n Judge Torres granted summary judgment to CGI on Ashmore’s contract claim,\\nhowever.\\n\\n 13\\n\\f the bankruptcy case at this time because it had seemed\\n to create confusion as to who was in a position to\\n prosecute the Litigation.\\n\\nJ.A. 544S45.\\n\\n She added that:\\n\\n The timing of the defendants’ concern for Mr.\\n Ashmore’s creditors also is suspect. There was no\\n attempt to conceal Mr. Ashmore’s Chapter 7 filing or the\\n bankruptcy estate’s interest in any recovery in the\\n Litigation. . . . Ms. Edwards made an informed decision\\n to allow Mr. Ashmore to proceed with the Litigation.\\n There are no undisclosed promises between the parties.\\n\\nJ.A. 544S45.\\n\\n In response, Judge Torres lifted the stay. CGI then moved to dismiss for\\n\\nlack of standing, arguing that the case had not been abandoned to Ashmore to\\n\\nprosecute.\\n\\n C. Edwards Attempts to Reopen for a Second Time\\n\\n On December 16, 2015, in response to the developments in the SDNY,\\n\\nEdwards made a second motion to reopen the bankruptcy case, stating that she\\n\\nwas “concerned that if the whistleblower suit is dismissed due to a lack of\\n\\nstanding a valuable asset will be lost for both the Debtor and his creditors.”5 J.A.\\n\\n5\\n Edwards listed as a secondary rationale that she had “learned since the filing of\\nthe initial Motion to reopen this case that the debtor had an interest in a\\n\\n 14\\n\\f647. She also contended that by arguing in his opposition papers to CGI’s motion\\n\\nto dismiss that Edwards had abandoned her interest in the SOX lawsuit,\\n\\nAshmore had violated the Letter Agreement.6 In response, Judge Torres yet again\\n\\nstayed proceedings in the SOX Action.\\n\\n Meanwhile, back in the New Jersey Bankruptcy Court, Bankruptcy Judge\\n\\nVincent F. Papalia was assigned to the matter upon the death of Judge Stern. At a\\n\\nhearing on February 16, 2016, Ashmore and Edwards submitted a proposed\\n\\nconsent order asking Judge Papalia to find, inter alia, that “Ashmore duly\\n\\ndisclosed [the SOX action] in his petition and in this case” and “[i]n accordance\\n\\nwith the terms of [the Letter Agreement], Ashmore, not his Chapter 7 Trustee,\\n\\n\\nsettlement in connection with another pre-petition litigation against a former\\nemployer, which was not previously disclosed in his Chapter 7 case.” J.A. 648.\\nAshmore recovered $8,553 on a 1.5% interest in a future sale of Clean Edison,\\nwhich Ashmore claimed he believed to be “worthless at the time he filed his\\nbankruptcy petition.” J.A. 659.\\n6\\n In Ashmore’s opposition papers, he argued that the Letter Agreement “could\\nonly prohibit [a claim that Edwards abandoned the action] in the New Jersey\\nBankruptcy Court in the event that, at the conclusion of the [SOX] case, the\\nlitigation generated a significant distribution to unsecured creditors, and the\\nformer trustee determined to move to reopen the case. It certainly has no\\napplication in this Court, on issues relating to standing to sue during the\\npendency of this case, before its conclusion resulting in a recovery for plaintiff.\\nIndeed, to the contrary, the letter agreement effectively memorialized the\\ntrustee’s conferral of standing upon Ashmore until the end of the case.” 1:11-cv-\\n08611-AT (S.D.N.Y.), ECF No. 194.\\n\\n 15\\n\\fhas been and remains the real and proper party-in-interest in the District Court\\n\\nLitigation.” J.A. 700. CGI objected, and Judge Papalia noted his discomfort with\\n\\nmaking “legal and factual findings . . . on a motion to reopen that didn’t ask for\\n\\nthat relief.” J.A. 752.\\n\\n At a second hearing on March 15, 2016, Judge Papalia, stating that he did\\n\\nnot “need to decide the abandonment issue on [a] narrow motion to reopen,”\\n\\nissued a narrower factual finding, including, inter alia, a statement that though\\n\\nthe SOX action “was not scheduled on B as an asset,” Ashmore had “list[ed] it on\\n\\nthe statement of financial affairs and also disclosed it at various points\\n\\nthroughout the bankruptcy case.” J.A. 884, 887. He then reopened Ashmore’s\\n\\nbankruptcy case “for the limited purpose of administering the Sarbanes Oxley\\n\\nLitigation and the CleanEdison settlement.” J.A. 904. He further took care to note\\n\\nthat “[n]othing contained herein shall be considered a determination of the\\n\\nestate’s interest, if any, in the Sarbanes Oxley Litigation.” J.A. 905.\\n\\n Once the bankruptcy case was reopened, Edwards issued a notice\\n\\ninforming creditors that assets had been located and they could file proofs of\\n\\nclaim.\\n\\n\\n\\n\\n 16\\n\\fIV. The District Court’s Resolution of the Issue\\n\\n In this posture ¯ with the Bankruptcy Case reopened for the limited\\n\\npurposes stated above, and the SDNY action stayed ¯ the parties continued to\\n\\nargue in both courts about whether Ashmore had been, and continued to be, a\\n\\nproper party-in-interest.\\n\\n A. Ashmore’s Motion in Bankruptcy Court\\n\\n When Judge Papalia declined to opine on whether the litigation had in fact\\n\\nbeen abandoned to Ashmore, he had invited further briefing, stating that if the\\n\\nissue was “ever presented to [him] in the proper context, then [he would] decide\\n\\nit.” J.A. 884. Ashmore moved for such a determination on April 5, 2016. The\\n\\nbankruptcy court scheduled a hearing to resolve the issue on May 10, 2016, of\\n\\nwhich Edwards informed Judge Torres.\\n\\n B. Judge Torres’s 2016 Opinion\\n\\n The day before the bankruptcy court hearing, Judge Torres issued an\\n\\nopinion concluding that Edwards had not abandoned the action to Ashmore\\n\\nunder § 554(c), since Ashmore had failed to list the asset on his Schedule B. She\\n\\nthen dismissed the district court action as to Ashmore and directed Edwards to\\n\\nsubstitute in as the proper party-in-interest.\\n\\n\\n 17\\n\\f C. Appeal to this Court\\n\\n Ashmore immediately appealed to this Court on the issue of whether the\\n\\nlitigation had been abandoned to him. In a 2017 opinion, we dismissed the case\\n\\nfor lack of jurisdiction, concluding that the “dismissal of the case as to Ashmore\\n\\nand the substitution of the Trustee as the plaintiff are interlocutory orders that\\n\\nare not immediately appealable.” Ashmore v. CGI Grp., Inc., 860 F.3d 80, 82 (2d\\n\\nCir. 2017).\\n\\n D. Official Abandonment of the SOX Action\\n\\n Meanwhile, on September 5, 2017, Edwards and Ashmore moved in\\n\\nbankruptcy court for approval of a settlement in which Edwards would officially\\n\\nabandon the SOX action under Section 554(a) of the Bankruptcy Code in\\n\\nexchange for Ashmore paying in full any creditors who had filed proofs of claim.\\n\\nOn July 25, 2017, in anticipation of settlement, Ashmore officially amended his\\n\\nSchedule B form to include the SOX litigation. The pertinent terms of the\\n\\nproposed settlement included:\\n\\n (1) that Ashmore would “deliver sufficient funds . . .\\n to pay all of the allowed Claims and the\\n Administrative Costs in full;”\\n (2) that Edwards would file a Notice of Abandonment\\n under Section 554(a); and\\n\\n\\n 18\\n\\f (3) that Edwards would use her “best efforts to\\n reasonably cooperate with the Debtor in the\\n substitution of the Debtor in the SOX action as the\\n plaintiff and proper party in interest.”\\n\\nJ.A. 1039S40.\\n\\n The bankruptcy court held a hearing on the proposed settlement on\\n\\nOctober 3, 2017, and approved it over CGI’s objections.7 As a result, Ashmore\\n\\npaid $50,356.88 to his creditors, covering the total amount of proofs of claim filed\\n\\nsince the reopening of the bankruptcy case. The difference between this\\n\\nsettlement payment and the $293,784 of claims that Ashmore originally listed on\\n\\nhis Schedule F is largely attributable to: (1) $135,878 in student loans that were\\n\\nnot dischargeable (and presumably not discharged); and (2) approximately\\n\\n$93,000 in claims related to his divorce that Ashmore resolved with his former\\n\\nwife outside of the bankruptcy proceedings.\\n\\n E. Dismissal for Judicial Estoppel\\n\\n After the SOX litigation was officially abandoned by Edwards, she and\\n\\nAshmore jointly moved in the district court to restore Ashmore as the plaintiff\\n\\n\\n\\n7\\n Judge Papalia did, however, include a rider to the Agreement stating that “[t]he\\nrecitals in this Stipulation and Consent Order . . . are binding upon only the\\nTrustee and the Debtor. . . . [They] are not binding upon CGI, nor . . . [shall they]\\nhave any preclusive effect with respect to CGI in the SOX action.” J.A. 1107.\\n\\n 19\\n\\fand proper party-in-interest. Ashmore also renewed an earlier motion for\\n\\nreconsideration of the 2016 Order dismissing the case for lack of standing, and\\n\\nCGI renewed an earlier motion for dismissal on the grounds of judicial estoppel.8\\n\\n On August 10, 2018, Judge Torres resolved all outstanding motions. She\\n\\nfirst granted Ashmore’s motion to be substituted as plaintiff, then denied his\\n\\nmotion for reconsideration as moot in light of Edwards’s official abandonment of\\n\\nthe SOX action, and finally granted CGI’s motion to dismiss on the grounds of\\n\\njudicial estoppel.\\n\\n This appeal follows.\\n\\n DISCUSSION\\n\\n On appeal, Ashmore challenges three orders of the district court: first, the\\n\\nAugust 10, 2018, Order in which the district court dismissed his case on the\\n\\ngrounds of judicial estoppel; second, the May 9, 2016, Order in which the district\\n\\ncourt found that Edwards had not abandoned the litigation to Ashmore and so\\n\\ndismissed the case for lack of standing; and third, the September 23, 2015,\\n\\n8\\n During the pendency of the settlement approval, both parties had made\\nmotions in the SDNY¯ CGI to dismiss the SOX action on the grounds of judicial\\nestoppel, and Ashmore for reconsideration of the 2016 Order. Judge Torres\\ndenied both motions pending the bankruptcy court’s decision, finding that\\n“judicial efficiency warrants waiting until the bankruptcy court has determined\\nwhether to approve the settlement.” J.A. 1026.\\n\\n 20\\n\\fdecision of the district court granting summary judgment to CGI on his contract\\n\\nclaims.\\n\\nI. Standard of Review\\n\\n A district court’s decision to invoke judicial estoppel is reviewed for abuse\\n\\nof discretion. Clark v. AII Acquisition, LLC, 886 F.3d 261, 265 (2d Cir. 2018). We\\n\\nhave emphasized, however, that “[w]hile deferential, abuse of discretion review\\n\\nis not a rubber stamp. A district court may not do inequity in the name of\\n\\nequity.” Id. at 266 (internal quotation marks omitted).\\n\\n We review orders granting dismissal or summary judgment de novo.\\n\\nGiuppone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013).\\n\\nII. Judicial Estoppel\\n\\n “The doctrine of judicial estoppel prevents a party from asserting a factual\\n\\nposition in one legal proceeding that is contrary to a position that it successfully\\n\\nadvanced in another proceeding.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369\\n\\nF.3d 113, 118 (2d Cir. 2004). Judicial estoppel functions to “protect the integrity of\\n\\nthe judicial process by prohibiting parties from deliberately changing positions\\n\\naccording to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S.\\n\\n742, 749S50 (2001) (internal quotation marks and citations omitted). Thus,\\n\\n\\n 21\\n\\f“[w]here a party assumes a certain position in a legal proceeding, and succeeds\\n\\nin maintaining that position, he may not thereafter, simply because his interests\\n\\nhave changed, assume a contrary position, especially if it be to the prejudice of\\n\\nthe party who has acquiesced in the position formerly taken by him.” Id. at 749\\n\\n(internal quotation marks and citations omitted).\\n\\n Judicial estoppel is properly invoked where: (1) a party’s later position is\\n\\nclearly inconsistent with its earlier position, and (2) the party’s former position\\n\\nhas been adopted in some way by the court in an earlier proceeding. Id. at\\n\\n750S51. We have also often, but not always, required a showing that the party\\n\\nasserting the two inconsistent positions would derive an unfair advantage\\n\\nagainst the party seeking estoppel. Id. at 751; see also BPP Illinois, LLC v. Royal\\n\\nBank of Scotland Grp. PLC, 859 F.3d 188, 194 (2d Cir. 2017). Finally, “[b]ecause the\\n\\ndoctrine is primarily concerned with protecting the judicial process, relief is\\n\\ngranted only when the risk of inconsistent results with its impact on judicial\\n\\nintegrity is certain.” Adelphia Recovery Tr. v. Goldman, Sachs & Co., 748 F.3d 110,\\n\\n116 (2d Cir. 2014) (internal quotation marks omitted).\\n\\n In sum, “[j]udicial estoppel is designed to prevent a party who plays fast\\n\\nand loose with the courts from gaining unfair advantage through the deliberate\\n\\n\\n 22\\n\\fadoption of inconsistent positions in successive suits.” Wight, 219 F.3d at 89.\\n\\nMoreover, “there must be a true inconsistency between the statements in the two\\n\\nproceedings. If the statements can be reconciled there is no occasion to apply an\\n\\nestoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 72S73 (2d Cir. 1997). Finally,\\n\\nthe “exact criteria for invoking judicial estoppel will vary based on specific\\n\\nfactual contexts.” Adelphia, 748 F.3d at 116 (internal quotation marks and citations\\n\\nomitted).\\n\\n A. Judicial Estoppel in the Bankruptcy Context\\n\\n Judicial estoppel is regularly invoked in the bankruptcy context;\\n\\nspecifically, “[j]udicial estoppel will prevent a party who failed to disclose a claim\\n\\nin bankruptcy proceedings from asserting that claim after emerging from\\n\\nbankruptcy.” BPP, 859 F.3d at 192 (internal quotation marks and citations\\n\\nomitted). Moreover, whether a party is advancing inconsistent claims in the\\n\\nbankruptcy context “is largely informed by the bankruptcy court’s treatment of\\n\\nthose claims.” Adelphia, 748 F.3d at 118. We have emphasized that\\n\\n“[d]etermination of the ownership of assets is at the core of the bankruptcy\\n\\nprocess. . . . It is therefore crucial, both for the sake of finality and the needs of\\n\\n\\n\\n\\n 23\\n\\fdebtors and creditors, that claims to ownership of various assets be determined\\n\\nin the bankruptcy proceedings.” Id.\\n\\n For the purposes of judicial estoppel, we typically find that a bankruptcy\\n\\ncourt “adopted” a particular position “when the bankruptcy court confirms a\\n\\nplan pursuant to which creditors release their claims against the debtor.” BPP,\\n\\n859 F.3d at 194 (internal quotation marks and citations omitted). We have\\n\\nrecently affirmed the use of judicial estoppel in two opinions dealing with failure\\n\\nto disclose assets in bankruptcy court.\\n\\n First, in Adelphia Recovery Trust v. Goldman, Sachs & Company, we affirmed\\n\\nthe use of judicial estoppel where the plaintiff cable company had failed to list on\\n\\nits bankruptcy filings an account whose ownership was in question. 748 F.3d at\\n\\n118. Throughout a five-year bankruptcy proceeding, plaintiff never claimed the\\n\\naccount as one of its assets; however, it later brought suit in the district court\\n\\nclaiming that the account was its own. We held that judicial estoppel was\\n\\nproperly invoked, concluding that “[a] different ruling would threaten the\\n\\nintegrity of the bankruptcy process by encouraging parties to alter their positions\\n\\nas to ownership of assets as they deem their litigation needs to change.” Id. at\\n\\n119.\\n\\n\\n 24\\n\\f Then, in BPP Illinois LLC v. the Royal Bank of Scotland Group PLC, we\\n\\naffirmed the use of judicial estoppel where a group of hotel-related businesses\\n\\nbrought a fraudulent inducement suit against several banks, but where, in a\\n\\nparallel bankruptcy proceeding, their “schedule of . . . assets, including legal\\n\\nclaims, never listed [the fraudulent inducement] claims,” 859 F. 3d at 191, and\\n\\nplaintiffs never disclosed the parallel legal proceedings throughout a two-year\\n\\nbankruptcy proceeding. Id. at 191S94.\\n\\n In contrast, in Clark v. AII Acquisition, LLC, we held that the district court\\n\\nabused its discretion where a debtor, “unsure of whether his bankruptcy asset\\n\\nschedules needed to be updated to reflect his diagnosis [of mesothelioma] and\\n\\nintention to litigate ¯ alerted his bankruptcy counsel . . . and trusted him to do\\n\\nwhat was required under the law.” 886 F.3d at 264 (internal quotation marks\\n\\nomitted). Clark’s counsel failed to convey the information to the bankruptcy\\n\\ncourt, however, and the district court subsequently dismissed Clark’s personal\\n\\ninjury suit on judicial estoppel grounds. Id. at 265. Noting that “judicial estoppel\\n\\nis not a mechanical rule,” id. at 266, we held that “[n]othing in the record . . .\\n\\nsuggests that the Clarks withheld Mr. Clark’s diagnosis from the bankruptcy\\n\\n\\n\\n\\n 25\\n\\fcourt in an effort to game the bankruptcy system,” and that therefore “principles\\n\\nof equity require the courts to entertain [the] personal injury claims,” id. at 268.\\n\\n B. Third Circuit Law\\n\\n We look to the law of the circuit in which the bankruptcy proceeding\\n\\noccurred “for the limited purpose” of determining whether the failure to list a\\n\\nparticular claim on a debtor’s bankruptcy filings “is equivalent to an assertion\\n\\nthat [the debtor] did not have such a claim.” BPP, 859 F.3d at 192.\\n\\n Because Ashmore’s bankruptcy proceeding was filed in New Jersey, we\\n\\nexamine whether, under Third Circuit law, failure to list a claim amounts to a\\n\\ndenial that the claim exists. As discussed below, the Third Circuit’s analysis\\n\\ndepends on the facts and circumstances of the case, and is intertwined with that\\n\\ncircuit’s judicial estoppel standard.\\n\\n More specifically, the Third Circuit has ”expressly left open the question of\\n\\nwhether . . . nondisclosure [on bankruptcy filings], standing alone, can support a\\n\\nfinding that a plaintiff has asserted inconsistent positions within the meaning of\\n\\nthe judicial-estoppel doctrine.” Ryan Ops. G.P. v. Santiam-Midwest Lumber Co., 81\\n\\nF.3d 355, 362 (3d Cir. 1996). Because the Third Circuit test focuses heavily on the\\n\\nintersection between inconsistent assertions and bad faith on behalf of the party\\n\\n\\n 26\\n\\faccused of making the contradictory statements, it has not needed to answer that\\n\\nnarrow question, but has instead stated that “[a]sserting inconsistent positions\\n\\ndoes not trigger the application of judicial estoppel unless intentional self-\\n\\ncontradiction is . . . used as a means of obtaining unfair advantage.” Id. (internal\\n\\nquotation marks omitted). It has further clarified that “[a]n inconsistent argument\\n\\nsufficient to invoke judicial estoppel must be attributable to intentional\\n\\nwrongdoing.” Id. (emphasis added).\\n\\n In its leading cases on the intersection of judicial estoppel and bankruptcy-\\n\\nrelated nondisclosures, the Third Circuit has twice considered whether judicial\\n\\nestoppel was appropriate and answered in the negative. First, in Ryan, the court\\n\\nconsidered whether the debtor’s failure to list various claims for breach of\\n\\nwarranty on either his Schedule B or SOFA forms was tantamount to an assertion\\n\\nthat they did not exist. Id. While Ryan had not yet filed suit at the time he filed\\n\\nfor bankruptcy, the Schedule B at the time required the debtor to list, inter alia,\\n\\n“contingent and unliquidated claims of every nature.” Id. The court found that\\n\\nRyan had violated his statutory duty of full disclosure by failing to list the claim,\\n\\nbut nevertheless found judicial estoppel inappropriate under the facts of that\\n\\n\\n\\n\\n 27\\n\\fcase, noting that Ryan’s lack of disclosure did not provide a basis for inferring his\\n\\nbad faith. Id. at 364. The court then continued:\\n\\n [P]olicy considerations militate against adopting a rule\\n that the requisite intent for judicial estoppel can be\\n inferred from the mere fact of nondisclosure in a\\n bankruptcy proceeding. Such a rule would unduly\\n expand the reach of judicial estoppel in post-bankruptcy\\n proceedings and would inevitably result in the\\n preclusion of viable claims on the basis of inadvertent or\\n good-faith inconsistencies. While we by no means\\n denigrate the importance of full disclosure or condone\\n nondisclosure in bankruptcy proceedings, we are\\n unwilling to treat careless or inadvertent nondisclosures\\n as equivalent to deliberate manipulation when\\n administering the “strong medicine” of judicial\\n estoppel.\\n\\nId.\\n\\n More recently, in In re Kane, the court found no error when a district court\\n\\ndid not invoke estoppel when a debtor had listed her divorce proceeding on her\\n\\nSOFA, but not, initially, on her Schedule B. 628 F.3d 631 (3d Cir. 2010). The Kane\\n\\nCourt noted that Ryan had left open the question of whether nondisclosure alone\\n\\ncould support a finding of “irreconcilable inconsistency,” and held that judicial\\n\\nestoppel was not required. Id. at 639. The court emphasized that “a debtor’s\\n\\nburden is limited to reasonable diligence in completing schedules.” Id. at 643\\n\\n(internal quotation marks and alterations omitted).\\n\\n 28\\n\\f We thus cannot discern in Third Circuit law an absolute answer to the\\n\\nnarrow question our case law asks us to consider: whether any nondisclosure on\\n\\nbehalf of Ashmore constitutes an assertion that the litigation does not exist. The\\n\\nanswer, it seems, is that it depends upon the facts and circumstances of the case,\\n\\nand how those facts and circumstances relate to the Third Circuit’s distinct test\\n\\nfor when to apply judicial estoppel’s “strong medicine.” Moreover, in cases not\\n\\nterribly different from the instant one, the Third Circuit has leaned against its\\n\\napplication.\\n\\n Having so established, we proceed to an examination of the four factors\\n\\nthat our precedent requires us to consider.\\n\\n C. Application of the Four Factor Test\\n\\n In its opinion, the district court concluded that each of the factors weighed\\n\\nin favor of judicial estoppel. Ashmore argues that these conclusions were\\n\\nerroneous. We will examine each factor in detail.\\n\\n 1. Advancement of Inconsistent Factual Positions\\n\\n The first requirement for a finding of judicial estoppel is that “a party’s\\n\\nlater position is ‘clearly inconsistent’ with its earlier position.” DeRosa v. Nat’l\\n\\nEnvelope Corp., 595 F.3d 99, 103 (2d Cir. 2010).\\n\\n\\n 29\\n\\f The district court first analyzed Third Circuit law, concluding that the\\n\\nfailure to list a pending action in the schedule of assets constitutes an assertion\\n\\nthat the action does not exist. It based this conclusion on three things: (1) a\\n\\nreading of the pre-Kane case law which emphasized the debtor’s duty of\\n\\ndisclosure; (2) two district court cases in which courts have stated, without\\n\\ncitation, that nondisclosure is an assertion that an action does not exist;9 and (3)\\n\\nthe contention that Kane is distinguishable from the instant case, based primarily\\n\\non the fact that the debtor in Kane almost immediately amended her Schedule B\\n\\n(whereas Ashmore amended it four years after the initial filing).\\n\\n We find these rationales unpersuasive. First, as noted above, the better\\n\\nreading of Third Circuit case law suggests that the question is not settled and that\\n\\nthe court, despite numerous opportunities to opine on the question, has\\n\\nspecifically left it open, preferring instead to focus its analysis on the bad or good\\n\\nfaith of the debtor. Without a doubt the Third Circuit emphasizes the critical\\n\\nnature of the duty of disclosure; it pairs that directive, however, with concern for\\n\\npreclusion of otherwise viable suits based on “careless or inadvertent\\n\\n\\n\\n9\\n Bartel ex rel. McQueen v. Charles Kurz & Co., 110 F. Supp. 3d 579, 587 (E.D. Pa.\\n2015); Giordano v. Saxon Mortg. Servs., Inc., 2013 WL 12158378, at *7 (D.N.J. Oct.\\n31, 2013).\\n\\n 30\\n\\fnondisclosures,” Ryan, 81 F.3d at 364, and limits a debtor’s burden to “reasonable\\n\\ndiligence,” In re Kane, 628 F.3d at 643, particularly in cases where the trustee or\\n\\nbankruptcy judge has indicated to the debtor that he has satisfied his disclosure\\n\\nrequirements.\\n\\n Second, our analysis is not affected by the fact that two district courts in\\n\\nthe Third Circuit have stated, without supporting citation, that a failure to\\n\\ndisclose a claim is a representation that such a claim does not exist. Such\\n\\ndecisions are not binding on us and do not constitute persuasive evidence that\\n\\nthe Third Circuit did not mean what it has clearly stated.\\n\\n Third, the district court’s conclusion that Kane is inapposite is entwined\\n\\nwith its finding that “Ashmore’s conduct at several stages of the Bankruptcy\\n\\naction and this action suggests an effort to conceal the existence of this action as\\n\\nan asset and shield it from his creditors.” Edwards v. CGI Grp. Inc., No. 11-cv-\\n\\n8611(AT), 2018 WL 4043142, at *8 (S.D.N.Y. Aug. 10, 2018). We do not agree that\\n\\nAshmore’s actions are consistent with an intent to conceal the SOX action’s\\n\\nexistence. The district court cites three actions taken by Ashmore as supporting\\n\\nits conclusion: (1) the fact that Ashmore’s initial June 2013 motion to dismiss his\\n\\nbankruptcy case cited only to “intervening matters;” (2) that Ashmore and\\n\\n\\n 31\\n\\fEdwards failed to disclose the Letter Agreement to the bankruptcy court; and (3)\\n\\nthat Ashmore opposed Edwards’s second motion to reopen and argued in the\\n\\ndistrict court that she had abandoned the action to him. These actions cannot bear\\n\\nthe weight assigned to them by the district court, especially in light of the\\n\\nnumerous actions that Ashmore took that demonstrate candor about the SOX\\n\\nlitigation.\\n\\n To begin with, we note that in Ashmore’s very first filing, as part of the\\n\\nSOFA, he listed the SOX litigation by name and docket number. Undoubtedly, he\\n\\nshould have listed it on the Schedule B. But it is difficult to attribute to a pro se\\n\\nlitigant a scheme to hide a fact that he disclosed on what would surely appear to\\n\\na lay person to be a parallel schedule. Moreover, Ashmore did mention the\\n\\nlitigation to Edwards at the creditors’ meeting, and provided her with a copy of\\n\\nthe complaint a few weeks later. Shortly thereafter, Edwards provided that\\n\\ncommunication to the bankruptcy judge and posted it on the docket for all to see.\\n\\nIt is thus undisputed that by July 2013, a mere three months after his initial filing,\\n\\nboth Edwards, as the estate trustee, and Judge Stern, the judge presiding over the\\n\\nbankruptcy action, were fully aware of the SOX litigation, and thus well situated\\n\\nto protect the creditors’ interests. That Ashmore initially attempted to dismiss his\\n\\n\\n\\n 32\\n\\fbankruptcy case due to “intervening matters,” and did not elaborate on what\\n\\nthose matters were until asked, is insufficient evidence of an intent to conceal.\\n\\nIndeed, it is not clear how Ashmore’s effort to undo his bankruptcy filing, rather\\n\\nthan to press ahead to obtain a discharge, suggests an effort to hide assets in\\n\\norder to defraud creditors. And clearly, from that point forward, rather than\\n\\nattempting to conceal the action, nearly every action Ashmore took in\\n\\nbankruptcy court had the SOX litigation at its centerpiece.\\n\\n That Edwards initially failed to disclose the Letter Agreement to the\\n\\nbankruptcy court is probative not of Ashmore’s bad faith or willingness to play\\n\\n“fast and loose” with the judiciary, but, if anything, of Edwards’s dereliction of\\n\\nduty under Bankruptcy Rule 9019(a), which requires the court to approve a\\n\\n“compromise or settlement” with notice to the creditors. Indeed, it is difficult to\\n\\nfault Ashmore, a pro se debtor, when Edwards was the only party with the\\n\\nauthority to move the bankruptcy court for approval of the Letter Agreement. See\\n\\nFed. R. Bankr. P. 9019(A) (“On motion by the trustee and after notice and a hearing,\\n\\nthe court may approve a compromise or settlement.”) (emphasis added). It is\\n\\neven more difficult to do so once we also recognize that it is the trustee, not the\\n\\ndebtor, who is charged with serving as the representative of the creditors and as\\n\\n\\n 33\\n\\fan officer of the court. Moreover, there is no evidence that Ashmore designed or\\n\\ndrafted the terms of the Letter Agreement, which instead was sent by Edwards to\\n\\nAshmore for his signature. Even assuming that Ashmore was the moving force\\n\\nbehind the Letter Agreement, it is apparent from the face of the Agreement that,\\n\\nfar from seeking to channel recovery to Ashmore at the creditors’ expense, the\\n\\nLetter Agreement sought to preserve the creditors’ rights in any settlement.\\n\\n Finally, Ashmore’s legal argument in the district court that his Letter\\n\\nAgreement with Edwards prohibited him from arguing about abandonment if\\n\\nthe SOX litigation generated a significant settlement is just that ¯ a legal\\n\\nargument. It is not probative of any intention on Ashmore’s part to conceal the\\n\\nSOX litigation from the bankruptcy court. In fact, in arguing abandonment,\\n\\nAshmore consistently represented to the district court and the bankruptcy court\\n\\nthat, under the Letter Agreement, his creditors had a right to any recovery that he\\n\\nmight obtain upon successful prosecution of the whistleblower suit.\\n\\n Under these circumstances, it cannot be concluded that Ashmore asserted\\n\\nclearly inconsistent positions. Ashmore’s position in the district court ¯ that he\\n\\ndid indeed have a SOX claim ¯ is clearly not inconsistent with: (1) listing the\\n\\nlitigation on his SOFA at the time of filing; (2) disclosing at least the existence of\\n\\n\\n\\n 34\\n\\fthe litigation at the creditors’ meeting; (3) attaching the complaint at Edwards’s\\n\\nrequest when he first attempted to dismiss the bankruptcy action; or (4) giving\\n\\nin-depth testimony at the July 23, 2013, hearing as to the nature of the SOX action\\n\\nand his desire to control the litigation. The scant facts relied upon by the district\\n\\ncourt are not sufficient, in the face of these actions, to support a finding that\\n\\nAshmore intended to persuade the bankruptcy court that he did not have a claim\\n\\nagainst CGI. We therefore hold that the district court clearly erred in finding that\\n\\nAshmore’s positions were “clearly inconsistent,” and that it erroneously\\n\\ninterpreted Third Circuit law when it concluded that his failure to list the claim\\n\\non his Schedule B was, in and of itself, an assertion that the litigation did not\\n\\nexist.\\n\\n 2. Adoption\\n\\n The second requirement for judicial estoppel is a finding that “the party’s\\n\\nformer position has been adopted in some way by the court in the earlier\\n\\nproceeding.” DeRosa, 595 F.3d at 103.\\n\\n The district court concluded that the bankruptcy court adopted the\\n\\nposition that there was no SOX litigation, citing several district court cases for the\\n\\nproposition that “a discharge of debts . . . together with the closing of a\\n\\n\\n\\n 35\\n\\fbankruptcy case without the distribution of an asset, constitutes an adoption of\\n\\nthe position that the asset does not exist.” Edwards, 2018 WL 4043142, at *8. It thus\\n\\nfound that, when the bankruptcy court originally discharged Ashmore’s debts\\n\\nwithout the distribution of any assets on November 18, 2013, it adopted the\\n\\nposition that the SOX litigation did not exist.\\n\\n Upon a thorough review of the record, the district court has again sliced\\n\\nthe argument too narrowly. The record does not tell us why Judge Stern did not\\n\\ninquire about the SOX litigation when he discharged Ashmore’s debts; it does,\\n\\nhowever, make clear that Judge Stern was fully aware of, and previously\\n\\nconsidered thoroughly, the potential of the SOX litigation to generate assets for\\n\\nthe creditors. It is true that under our case law, his discharge of the debt in 2013\\n\\ncould be read as an adoption of the position that the litigation did not exist. We\\n\\ndo not question the holding of Adelphia that “adoption in judicial estoppel is\\n\\nusually fulfilled when the bankruptcy court confirms a plan pursuant to which\\n\\ncreditors release their claims against the debtor.” 748 F.3d at 118 (internal\\n\\nquotation marks and alterations omitted; emphasis added). But given the\\n\\nmeandering course of this bankruptcy under the inconsistent actions of Edwards,\\n\\nthe trustee, this is not the usual bankruptcy case. At a minimum, from the time\\n\\n\\n 36\\n\\fthat the bankruptcy action was reopened in March 2016, “for the limited purpose\\n\\nof administering the Sarbanes Oxley Litigation,” J.A. 904, there can be no credible\\n\\nargument that the bankruptcy court had adopted such a position.\\n\\n Thus, when looked at as a whole, in light of the bankruptcy court’s clear\\n\\nunderstanding in July 2013 that the litigation existed (despite its willingness later\\n\\nto discharge Ashmore’s debts), as well as its total clarity as to the potential value\\n\\nof the litigation upon Edwards’s motion to reopen, we cannot say that the\\n\\nbankruptcy court adopted a position that the SOX litigation did not exist. We\\n\\ntherefore conclude that the district court’s analysis of the adoption question was\\n\\nerroneous.\\n\\n 3. Unfair Advantage/Detriment\\n\\n We often require ¯ in addition to the two requirements above ¯ that the\\n\\n“party seeking to assert an inconsistent position would derive an unfair\\n\\nadvantage or impose an unfair detriment on the opposing party if not estopped.”\\n\\nNew Hampshire, 532 U.S. at 751. However, “[w]e have been particularly apt to\\n\\noverlook the general requirement that a party seeking estoppel have suffered\\n\\nprejudice where . . . the party to be estopped failed to make the proper\\n\\ndisclosures during bankruptcy,” Clark, 886 F.3d at 267, and have instead justified\\n\\n\\n 37\\n\\fthe imposition of judicial estoppel in part on any unfair advantage the estopped\\n\\nparty may have gained over “former creditors, who had a right to consider the\\n\\n[undisclosed] claims during the bankruptcy proceeding,” BPP, 859 F.3d at 194.\\n\\n The district court considered this factor and concluded that “Ashmore\\n\\nderived an unfair advantage from his failure to disclose this action as an asset to\\n\\nthe Bankruptcy Court.” Edwards, 2018 WL 4043142, at *9. That conclusion, too, is\\n\\nerroneous, as the argument that Ashmore gained any advantage at the expense\\n\\nof his creditors is theoretical and speculative.\\n\\n Although Ashmore was initially discharged of his debts in September 2013,\\n\\nthe Letter Agreement provided that he would consent to reopen the case if he\\n\\nsucceeded in the SOX litigation. And in any event, the bankruptcy was later\\n\\nreopened and the creditors were advised of the litigation and invited to submit\\n\\nproofs of claim against the estate. Though it recognized these facts, the district\\n\\ncourt analyzed Ashmore’s potential unfair advantage over his creditors by\\n\\ncomparing the original amount owed at the time of the 2013 filing (over $290,000)\\n\\nwith the roughly $50,000 in claims that were filed upon the reopening of his\\n\\nbankruptcy action. It thus inferred that Ashmore was able to save nearly $240,000\\n\\n\\n\\n\\n 38\\n\\fthrough his alleged attempts to conceal the action from the creditors. We cannot\\n\\nagree.\\n\\n As an initial matter, and as the district court referenced in a footnote, of the\\n\\n$293,784 Ashmore originally listed on his Schedule F, $135,878 was for\\n\\nnondischargeable student loans. Accordingly, the discharge did not affect\\n\\nAshmore’s liability for that amount. Roughly $93,000 of the original amount\\n\\nlisted represented debts owed to his wife and wife’s attorney as part of a divorce\\n\\nproceeding.10 Ashmore later represented to the district court that “in May 2015,\\n\\n[he] reached an agreement with his former wife that resolve[d] the economic and\\n\\nother claims between them, including her claims in bankruptcy.” 1:11-cv-08611-\\n\\nAT (S.D.N.Y.), ECF No. 179, n.7. CGI offers no evidence or analysis to discredit\\n\\nthat representation.\\n\\n Of the remaining roughly $65,000 that Ashmore owed to creditors, claims\\n\\nwere filed in the amount of $50,356.88. To conclude that Ashmore was unfairly\\n\\nadvantaged because no claims were filed for the other roughly $15,000 is to\\n\\n\\n\\n10\\n More specifically, Ashmore’s Schedule F lists the following potential claims:\\n$49,530 to Ashmore’s ex-wife as part of a divorce judgment; $30,000 for\\nAshmore’s ex-wife’s legal fees; $12,046 for Ashmore’s share of a court-appointed\\nattorney for his children during the divorce; and $1634 to a “charged off account\\nduring divorce due to ex-wife charges.” J.A. 104S05. This totals $93,210.00.\\n\\n 39\\n\\fengage in an unduly speculative enterprise. Many of the claims were for as little\\n\\nas $125 or $1000. There is substantial uncertainty as to whether the creditors who\\n\\nchose not to file a proof of claim in 2016 after being advised of the potential value\\n\\nof the whistleblower suit might have found it worthwhile to do so in 2013 had\\n\\nthey known about the same suit then. Our precedents, Adelphia and BPP, deal\\n\\nwith numbers at a completely different scale. Moreover, they deal with situations\\n\\nwhere the litigation was never disclosed. Here, every creditor was notified in 2016\\n\\nof the opportunity to file a claim in light of a potentially valuable SOX litigation.\\n\\nThe reasons individual creditors filed or did not file are presumably various;\\n\\nthere is no evidence, however, that any of them were disadvantaged by anything\\n\\nthat happened in either proceeding.\\n\\n Moreover, CGI has failed to demonstrate that it has been unfairly\\n\\ndisadvantaged by Ashmore’s actions.11 While we have no occasion to address the\\n\\n\\n\\n11\\n We find no merit in CGI’s argument, on appeal, that it was disadvantaged\\nbecause of “Ashmore’s lack of standing and his continued attempts to regain\\ncontrol of this litigation.” Appellee Br. 53S54. The parties on both sides have\\ntaken strategic approaches that generated costs for the other side, as is the case in\\nall litigation. That cannot be what we mean when we discuss an “unfair\\ndetriment” that would lead to judicial estoppel. Whether Ashmore or Edwards\\ncontrolled the litigation, the plaintiff’s position in that litigation was adverse to\\nCGI, both had an interest in winning a substantial award at CGI’s expense, and\\nCGI’s chances of prevailing on the SOX claim were unaffected.\\n\\n 40\\n\\fmerits of Ashmore’s underlying suit, it does not escape our notice that CGI was\\n\\ndenied summary judgment on Ashmore’s SOX claim. To estop Ashmore from\\n\\npursuing a non-frivolous claim based on a speculative and hypothetical\\n\\nunfairness to the creditors who chose not to file a claim even after being advised\\n\\nthat the estate had assets after all, and thus to terminate a potentially meritorious\\n\\nsuit, does not comport with judicial estoppel’s proper role. Indeed, it risks\\n\\n“do[ing] inequity in the name of equity.” Clark, 886 F.3d at 266 (internal quotation\\n\\nmarks omitted).\\n\\n 4. Impact on Judicial Integrity\\n\\n Finally, “because [judicial estoppel] is primarily concerned with protecting\\n\\nthe judicial process, relief is granted only when the risk of inconsistent results\\n\\nwith its impact on judicial integrity is certain.” Adelphia, 748 F.3d at 116\\n\\n(alterations and internal quotation marks omitted).\\n\\n The district court here concluded that invoking judicial estoppel was\\n\\nnecessary to protect judicial integrity, holding that to “[a]llow[] a debtor to\\n\\nengage in such conduct ‘would only diminish [his] incentive to provide a true\\n\\nand complete disclosure of [his] assets to the bankruptcy courts.’” Edwards, 2018\\n\\n\\n\\n\\n 41\\n\\fWL 4043142, at *9, quoting Azuike v. BNY Mellon, 962 F. Supp. 2d 591, 599\\n\\n(S.D.N.Y. 2013).\\n\\n We disagree that judicial integrity requires dismissal here. Both the\\n\\nbankruptcy court and Edwards made a series of strategic decisions in an attempt\\n\\nto best preserve the SOX litigation as a potential asset for Ashmore’s creditors,\\n\\nconcluding in an official settlement whereby Ashmore paid the claims of all\\n\\ncreditors who sought relief,12 and Edwards officially abandoned the litigation to\\n\\nhim. To now find that Ashmore concealed the action from that same court would\\n\\nundermine the years of hearings and motions on exactly this issue.\\n\\n In Azuike, the district court case from which the opinion below quotes, the\\n\\nfacts tell a different story. There, the plaintiff, who was represented by counsel at\\n\\nthe time of his bankruptcy filing, failed to list his EEOC claim on either his SOFA\\n\\nor his Schedule B, an omission that was not remedied at any time prior to the\\n\\nclosing of his bankruptcy case. Id. at 594. He reopened his bankruptcy case and\\n\\ndisclosed the action to the trustee and bankruptcy court only when his adversary\\n\\n\\n\\n\\n12\\n The Department of Education filed a proof of claim for the entire balance due\\nand owing on Ashmore’s student loans; however, the bankruptcy court\\ndetermined on June 29, 2016, that the student loans, on which Ashmore was not\\nin default, were nondischargeable under the Bankruptcy Code.\\n\\n 42\\n\\fin district court challenged his standing. Id. at 596. Here, plaintiff filed pro se, did\\n\\ndisclose the action in his initial filings, did disclose in considerable detail to both\\n\\nEdwards and the bankruptcy court the nature of the SOX action, and even sought\\n\\nto withdraw his petition rather than seek a discharge, long before the bankruptcy\\n\\ncourt decided to grant a (later revoked) discharge.\\n\\n Thus, the concerns for judicial integrity cited by the district court, based on\\n\\na case in which a pending claim was never disclosed to the bankruptcy court, are\\n\\nconsiderably less weighty under the distinct factual circumstances presented by\\n\\nthis case.\\n\\n D. Previous Cases\\n\\n Our conclusion is strengthened by critical distinctions between this case\\n\\nand the other bankruptcy cases in which this court has approved the use of\\n\\njudicial estoppel.\\n\\n The most salient distinction is that in each other case in which we have had\\n\\nthe opportunity to consider nondisclosure of a lawsuit in a bankruptcy\\n\\nproceeding, the lawsuit has been fully nondisclosed ¯ that is, the action was\\n\\nmentioned neither on the Schedule B nor on the SOFA, nor at the meeting of\\n\\ncreditors, nor at any point in the bankruptcy proceedings. That was the case both\\n\\n\\n 43\\n\\fin BPP, where the plaintiff at no point in the bankruptcy proceedings disclosed\\n\\nany potential claim relating to LIBOR manipulation, 859 F.3d at 192, and in\\n\\nAdelphia, where the plaintiff at no time during its bankruptcy proceedings\\n\\nclaimed ownership of the account in question, 748 F.3d at 118. It was true even in\\n\\nClark, in which we found judicial estoppel wrongly invoked despite the fact that\\n\\nthe debtor’s personal injury lawsuit was never disclosed to the bankruptcy court.\\n\\n886 F.3d at 268.\\n\\n Two of our sister circuits have dealt with more analogous circumstances, in\\n\\nwhich pending litigation was orally disclosed to the trustee, but not included on\\n\\nthe written bankruptcy filings. In Spaine v. Community Contacts, Inc., 756 F.3d 542\\n\\n(7th Cir. 2014), the plaintiff, a pro se bankruptcy filer, failed to list a pending\\n\\nemployment discrimination claim on either her Schedule B or her SOFA, id. at\\n\\n544. She had, however, “told the bankruptcy trustee about her lawsuit,” and\\n\\nclaimed in an affidavit that she had not been “told by the bankruptcy court of\\n\\nany need to amend her schedules.” Id. at 545. The Spaine Court, noting that the\\n\\nevidence showed only “incomplete schedules that were timely corrected through\\n\\nan oral disclosure,” concluded that in order for judicial estoppel to apply, the\\n\\ndefendant would have needed to “show more than an initial nondisclosure on a\\n\\n\\n 44\\n\\fbankruptcy schedule.”13 Id. at 547S48. It then went on to state that “Spaine’s\\n\\ncreditors were not and could not have been injured by incomplete Chapter 7\\n\\nschedules that were orally corrected before Spaine received a discharge,” and\\n\\ncontrasted the case to others in which “debtors engaged in affirmative\\n\\nmisrepresentations,” including those who denied their pending lawsuits when\\n\\nasked directly by the trustee. Id. It held that where, in contrast, the evidence was\\n\\n“limited to an omission followed by a truthful oral disclosure,” judicial estoppel\\n\\nwas no longer the proper remedy. Id. at 548.\\n\\n The D.C. Circuit reached a contrary result in Marshall v. Honeywell\\n\\nTechnology Systems Inc., 828 F.3d 923, 925 (D.C. Cir. 2016). There, too, plaintiff\\n\\nfailed to disclose an employment discrimination suit on either her SOFA or her\\n\\nSchedule B, but did make an oral disclosure. Id. The court there found judicial\\n\\nestoppel appropriate, concluding, in contrast to the Seventh Circuit, that “oral\\n\\ndisclosure to the trustee did not constitute notice to her creditors and could not\\n\\ncorrect the false information she conveyed on her schedules.” Id. at 930. Its\\n\\nconviction that judicial estoppel was appropriate was strengthened by the facts of\\n\\n\\n13\\n The Court did note that it would have reached a different result “[i]f there were\\nundisputed evidence that Spaine intentionally concealed her claim.” Spaine, 756\\nF.3d at 548.\\n\\n 45\\n\\fthat case in which the debtor had listed some, but not all, of her administrative\\n\\nproceedings. Id. at 931. This led the Marshall Court to the conclusion that her\\n\\nomission was not likely the product merely of inadvertence or mistake. Id. at\\n\\n931S32.\\n\\n We conclude that the circumstances here are more like those in Spaine, and,\\n\\nlike the Seventh Circuit, we find judicial estoppel inappropriate. Indeed,\\n\\nAshmore was in some ways more forthcoming than Spaine: unlike Spaine,\\n\\nAshmore’s pending litigation was listed in his original bankruptcy filings. We\\n\\ntherefore think that Ashmore’s arguments against judicial estoppel are stronger\\n\\nthan Spaine’s were and, as noted above, we do not think the record supports a\\n\\nfinding that there was “undisputed evidence that [Ashmore] intentionally\\n\\nconcealed [his] claim.” Spaine, 756 F.3d at 548.\\n\\n We do not discount or deprecate the failure to accurately list a debtor’s\\n\\nassets. On the contrary, we recognize again today that full disclosure by debtors\\n\\nis essential to the proper functioning of the bankruptcy system and that,\\n\\ntherefore, judicial estoppel is an appropriate remedy for those who play “fast and\\n\\nloose” with the disclosure requirements. But we balance that concern against our\\n\\nconviction that the “exact criteria for invoking judicial estoppel will vary based\\n\\n\\n 46\\n\\fon ‘specific factual contexts,’ and that ‘courts have uniformly recognized that its\\n\\npurpose is to protect the integrity of the judicial process by prohibiting parties\\n\\nfrom deliberately changing positions according to the exigencies of the\\n\\nmoment.’” Adelphia, 748 F.3d at 116, quoting New Hampshire, 532 U.S. at 749S51.\\n\\nWe further reaffirm that “judicial estoppel is not a mechanical rule.” Clark, 886\\n\\nF.3d at 266.\\n\\n We therefore hold that where, as here, a pro se debtor has listed his\\n\\npending litigation on the SOFA, rather than the Schedule B as it was constituted\\n\\nat the time of Ashmore’s filing, and then disclosed it to the trustee and the\\n\\nbankruptcy court prior to discharge of his debt, and the trustee and the\\n\\nbankruptcy court were on sufficient notice to take steps to protect the creditors’\\n\\ninterests, the debtor is not estopped from pursuing that litigation by virtue of the\\n\\ndoctrine of judicial estoppel.14 For estoppel to apply, there must be greater indicia\\n\\nthan presented here of an intent to deceive the court for the debtor’s benefit.15\\n\\n\\n\\n14\\n We express no view as to whether different inferences would be warranted if a\\npetitioner failed to list a lawsuit on the present Schedule B form, which explicitly\\nasks for information about legal claims.\\n15\\n We note that in the past we have referenced a “good faith” exception to the\\ndoctrine of judicial estoppel. See Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d\\nCir. 1997). We have rarely invoked this exception, or explored its limits, and need\\nnot do so today, as we find that the affirmative requirements for judicial estoppel\\n\\n 47\\n\\fIII. Abandonment under Section 554(c)\\n\\n Ashmore also appeals the May 9, 2016, Order of the district court in which\\n\\nit found that he was without standing to pursue the SOX action, the action never\\n\\nhaving been properly abandoned to him by Edwards. He argues that his oral\\n\\ndisclosure and disclosure on the SOFA is adequate for the purposes of the\\n\\n§ 521(a)(1) “scheduling” that is required by § 554(c).\\n\\n That Order, however, is moot. Since it was issued, Edwards has\\n\\nunquestionably effected a successful abandonment of the litigation under\\n\\n§ 554(a). There is thus no remaining question as to Ashmore’s standing. We\\n\\ntherefore leave for another day the question of whether an asset disclosed to the\\n\\nbankruptcy court orally and on a SOFA, but not on a Schedule B, is abandoned to\\n\\nthe debtor.16\\n\\n\\n\\n\\nwere not met.\\n16\\n We note that in Ayazi v. New York City Board of Education, 315 F. App’x 313, 315\\n(2d Cir. 2009), a panel of this court found, by summary order, that such\\ncircumstances would not lead to abandonment by operation of law, emphasizing\\nthat the “strict formalities surrounding abandonment exist for the protection of\\nthe creditors.”\\n\\n 48\\n\\fIV. Contract Claims\\n\\n Ashmore also appeals the grant of summary judgment to CGI on his\\n\\ncontract claims, arguing that material questions of fact remain as to whether CGI\\n\\ndenied him a bonus to which he was contractually entitled.\\n\\n Ashmore’s offer letter states as follows:\\n\\n You will be eligible to be a participant in the CGI-Profit\\n Participation Program. Through this program, you can\\n earn an annual bonus based on the achievement of\\n certain financial results, client satisfaction, member\\n satisfaction and other measures tied to your\\n performance. This program is dependent upon the\\n success of the company, your business unit and your\\n own performance.\\n\\nJ.A. 295. Ashmore alleges that CGI breached the terms of the offer letter by failing\\n\\nto provide him a bonus under this program. He argues that material questions of\\n\\nfact remain as to his eligibility for a bonus. We disagree.\\n\\n First, by its very terms, the bonus is discretionary, and dependent on\\n\\nseveral factors, including both Ashmore’s and the company’s performance.\\n\\nSecond, evidence was presented that it was the clearly-stated policy of\\n\\nAshmore’s group to offer a bonus only after an employee had worked for at least\\n\\n\\n\\n\\n 49\\n\\fsix months and was still employed at the end of the fiscal year.17 Ashmore\\n\\npresented no evidence to the contrary.\\n\\n In this case, Ashmore began work in May 2009. Having not worked for\\n\\nCGI for 6 months by the close of that fiscal year ¯ September 30, 2009 ¯ he was\\n\\nnot eligible for a bonus at that time. While Ashmore worked for more than six\\n\\nmonths in the 2009S2010 fiscal year, he was fired before the end of the fiscal year,\\n\\nand thus he was not eligible for a bonus that year. Although Ashmore argues that\\n\\nthe offer letter requires him to receive a bonus, he points to no evidence\\n\\nsupporting that interpretation. We thus find that there is no material question of\\n\\nfact as to whether CGI breached the terms of the offer letter, and affirm the\\n\\ndistrict court’s grant of summary judgment on Ashmore’s contract claims.\\n\\nV. Judicial Reassignment\\n\\n Finally, Ashmore requests reassignment to a new judge, arguing that his\\n\\ncase “deserves a fresh look by a different pair of eyes,” citing Armstrong v.\\n\\nGuccione, 470 F.3d 89, 113 (2d Cir. 2006). He states without support that Judge\\n\\n\\n\\n\\n17\\n On December 14, 2009, Ashmore’s supervisor, Marybeth Carragher, sent the\\nfollowing email: “It has always been our policy . . . not to give [bonuses to] those\\nmembers on board less than 6 months of the [fiscal year].” J.A. 304.\\n\\n 50\\n\\fTorres has “shown . . . animus to Ashmore,” such that “her impartiality might\\n\\nreasonably be questioned.” Appellant Br. 68. We disagree.\\n\\n The premise of Ashmore’s request is that reassignment is needed because\\n\\nthe “facts might reasonably cause an objective observer to question the judge’s\\n\\nimpartiality.” Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010). But Ashmore\\n\\nhas not pointed to any such facts, nor could he on the record before us. While\\n\\nJudge Torres found that Ashmore had engaged in deceptive conduct, absolutely\\n\\nnothing in the record suggests that her judgment was affected by impartiality or\\n\\nanimus. We therefore deny Ashmore’s request for reassignment.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we VACATE the judgment of the district court\\n\\ninsofar as it applies either judicial estoppel or lack of standing to dismiss\\n\\nAshmore’s claims under the Sarbanes-Oxley Act, AFFIRM the judgment\\n\\ndismissing his breach of contract claim, and remand for further proceedings\\n\\nbefore Judge Torres consistent with this opinion.\\n\\n\\n\\n\\n 51\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1984,"cells":{"id":{"kind":"number","value":8443999,"string":"8,443,999"},"name":{"kind":"string","value":"United States v. Ronald EVANS, Tashine Knighter"},"name_abbreviation":{"kind":"string","value":"United States v. Evans"},"decision_date":{"kind":"string","value":"2019-05-08"},"docket_number":{"kind":"string","value":"No. 17-2245-cr; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Crawford, Livingston, Wesley\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415433/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"CRAWFORD"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"WESLEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443999/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Ronald EVANS, Tashine Knighter\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Ronald EVANS, Tashine Knighter\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1985,"cells":{"id":{"kind":"number","value":4617987,"string":"4,617,987"},"name":{"kind":"string","value":"Juan Carlos SANTANA-FELIX, Petitioner, v. William P. BARR, United States Attorney General Respondent."},"name_abbreviation":{"kind":"string","value":"Santana-Felix v. Barr"},"decision_date":{"kind":"string","value":"2019-05-09"},"docket_number":{"kind":"string","value":"17-3850-ag"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Walker, Chin, Sullivan\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"17‐3850‐ag\\nSantana‐Felix v. Barr\\n BIA\\n Sagerman, IJ\\n A095 344 985\\n\\n\\n United States Court of Appeals\\n for the Second Circuit\\n AUGUST TERM 2018\\n\\n No. 17‐3850\\n\\n JUAN CARLOS SANTANA‐FELIX,\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL\\n Respondent.*\\n\\n ARGUED: FEBRUARY 15, 2019\\n DECIDED: MAY 9, 2019\\n\\n\\n\\n\\n Before: WALKER, CHIN, SULLIVAN, Circuit Judges.\\n\\n Petition for a review of a decision of the Board of Immigration Appeals (“BIA”)\\nordering Petitioner’s removal based on a conviction for an aggravated felony. We deny\\nthe petition for review on the grounds that Petitioner’s conviction for conspiracy in the\\nsecond degree to commit a felony – here, murder in the second degree – under New York\\nlaw is an aggravated felony.\\n\\n NICHOLAS J. PHILLIPS, Prisoners’ Legal Services of\\n New York, Albany, New York, for Petitioner.\\n\\n*\\n The Clerk of Court is respectfully directed to amend the official caption to conform to the above.\\n\\f REBEKAH NAHAS, Trial Attorney (Joseph H. Hunt,\\n Assistant Attorney General, Briena L. Strippoli,\\n Senior Litigation Counsel, on the brief), Office of\\n Immigration Litigation, United States\\n Department of Justice, Washington, DC, for\\n Respondent.\\n\\nPER CURIAM:\\n\\n Petitioner Juan Carlos Santana‐Felix, a native and citizen of the Dominican\\n\\nRepublic, seeks review of the BIA’s October 24, 2017 affirmance of a June 15, 2017 decision\\n\\nof an Immigration Judge (“IJ”) ordering Santana‐Felix removed based on his conviction\\n\\nfor conspiracy in the second degree, in violation of New York Penal Law (“NYPL”)\\n\\n§ 105.15. In re Juan Carlos Santana‐Felix, No. A095 344 985 (B.I.A. Oct. 24, 2017), aff’g, No.\\n\\nA095 344 985 (Immig. Ct. Napanoch June 15, 2017). Because we find that Santana‐Felix’s\\n\\nconviction constitutes an aggravated felony, the petition for review is DENIED.\\n\\n I.\\n\\n Santana‐Felix is a native of the Dominican Republic and, since 2006, a lawful\\n\\npermanent resident of the United States. In 2013, he was convicted under NYPL § 105.15\\n\\nfor conspiracy in the second degree. An Immigration Judge ordered his removal in part\\n\\nbased on this offense. The BIA affirmed the IJ’s order of removal based on two\\n\\naggravated felony counts: an aggravated felony crime of violence under 8 U.S.C.\\n\\n§ 1101(a)(43)(F) as defined in 18 U.S.C. § 16(b), and conspiracy to commit an aggravated\\n\\nfelony under 8 U.S.C. § 1101(a)(43)(U). Therefore, only these two grounds are before us.\\n\\n 2\\n\\fSee Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).\\n\\n The Supreme Court has since held that the crime of violence definition in § 16(b)\\n\\nis unconstitutionally void for vagueness. Sessions v. Dimaya, 138 S. Ct. 1204, 1215–16\\n\\n(2018). Accordingly, the crime of violence determination cannot stand, and the only\\n\\npossible remaining basis for Santana‐Felix’s removal is his conviction under NYPL\\n\\n§ 105.15 for conspiracy in the second degree to commit second‐degree murder. We\\n\\nreview de novo whether this conviction is an aggravated felony. Pierre v. Gonzales, 502\\n\\nF.3d 109, 113 (2d Cir. 2007).\\n\\n II.\\n\\n In determining whether a state conviction constitutes an aggravated felony, we\\n\\ngenerally begin by applying the categorical approach to determine “whether the state\\n\\nstatute defining the crime of conviction categorically fits within the generic federal\\n\\ndefinition of a corresponding” offense listed in the Immigration and Nationality Act\\n\\n(“INA”). Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder,\\n\\n569 U.S. 184, 190 (2013)). Under this approach, we look only to the statute of conviction\\n\\nto determine whether there is a categorical match and “‘presume that the conviction\\n\\nrested upon nothing more than the least of the acts criminalized’ under the state statute.”\\n\\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe, 569 U.S. at 190–91).\\n\\n When there is no categorical match, we next consider whether the state statute is\\n\\ndivisible under the modified categorical approach – that is, whether the statute\\n\\n\\n 3\\n\\fencompasses “elements in the alternative, and . . . [thus] multiple crimes,” as opposed to\\n\\nalternative means to commit the same crime. Mathis v. United States, 136 S. Ct. 2243, 2249,\\n\\n2257 (2016). If the statute is divisible, we may look beyond the statute to the record of\\n\\nconviction, including the indictment, to determine whether the conviction is an\\n\\naggravated felony. See id. at 2249.\\n\\n NYPL § 105.15 is not a categorical match to the federal definition of conspiracy,\\n\\nwhich is an aggravated felony listed in the INA under 8 U.S.C. § 1101(a)(43)(U). Under\\n\\nNew York law, “[a] person is guilty of conspiracy in the second degree when, with intent\\n\\nthat conduct constituting a [C]lass A felony be performed, he agrees with one or more\\n\\npersons to engage in or cause the performance of such conduct.” NYPL § 105.15. The\\n\\nINA’s definition of conspiracy, however, requires that the conspiracy be to commit an\\n\\n“aggravated felony.” 8 U.S.C. § 1101(a)(43)(U). Thus, we must ask whether all Class A\\n\\nfelonies under New York law are “aggravated felon[ies]” under the INA. Id. Some are\\n\\nnot. Compare NYPL § 220.21 (providing that possession of controlled substance is Class\\n\\nA felony), with 8 U.S.C. § 1101(a)(43)(B) (designating drug trafficking crimes as\\n\\naggravated felonies only if they involve “illicit trafficking,” which does not include mere\\n\\npossession). Accordingly, NYPL § 105.15 is not categorically an aggravated felony under\\n\\nthe INA.\\n\\n III.\\n\\n Nevertheless, when the ground of removal involves an inchoate crime like\\n\\n\\n 4\\n\\fsolicitation, attempt, or conspiracy, we have taken an approach analogous to the\\n\\nmodified categorical approach in which we consider only whether the “object crime”\\n\\ncharged is an aggravated felony. This is because, absent proof of a specific intent to\\n\\ncommit the object crime, an inchoate offense cannot lead to a conviction. See Mizrahi v.\\n\\nGonzales, 492 F.3d 156, 161 (2d Cir. 2007).\\n\\n In Mizrahi, we concluded that a New York conviction for solicitation under NYPL\\n\\n§ 100.05(1) constituted a controlled substance offense under the INA because the object\\n\\nof the solicitation was a controlled substance offense and proof of “intent to solicit the\\n\\ncommission of [the] particular crime” was necessary to the conviction. Id. In reaching\\n\\nthat conclusion, we relied on both “New York’s Criminal Jury Instructions, which require\\n\\nthat juries be charged as to both the specific object crime of an alleged solicitation and\\n\\nthat crime’s statutory definition,” and New York caselaw, which holds that intent to\\n\\ncommit the underlying crime is an essential element of a solicitation conviction. Id. at\\n\\n161–62 (citing People v. Cheathem, 658 N.Y.S.2d 84, 85 (2d Dep’t 1997)). We held “that an\\n\\ninchoate offense cannot be isolated from the object statute that defines the crime’s specific\\n\\nintent.” Id. at 163.\\n\\n We reach the same result here. Absent intent to commit the object offense,\\n\\nconspiracy is not a crime. Id. at 161 (“[C]riminality arises only when the inchoate conduct\\n\\nhas the violation of some other law as its specifically intended objective.”). New York’s\\n\\njury instruction for a conspiracy charge requires an instruction as to the specific object of\\n\\n\\n 5\\n\\fthe conspiracy and the definition of that offense. Criminal Jury Instructions New York\\n\\n§ 105.15. It further provides that “[t]he defendant must intend that conduct constituting\\n\\na [C]lass A felony be performed,” and intent “means conscious objective or purpose.” Id.\\n\\n“Thus, a person acts with the intent that conduct constituting a [C]lass A felony be\\n\\nperformed when his or her conscious objective or purpose is that such conduct be\\n\\nperformed.” Id.\\n\\n New York caselaw also supports this conclusion, since the prosecution must prove\\n\\nthe defendant had the intent to commit the specific object offense. “To establish the\\n\\ndefendant’s guilt of conspiracy in the second degree,” the State must “prove that, with\\n\\nthe intent that a [C]lass A felony be committed, the defendant agreed with others to\\n\\nengage in or cause the felony to be committed and that one of the conspirators committed\\n\\nan overt act in furtherance of the criminal scheme.” People v. Arroyo, 93 N.Y.2d 990, 991\\n\\n(1999) (citation omitted). Moreover, the prosecution must show that the agreement\\n\\ncontemplated the elements of the substantive offense, see, e.g., People v. Joyce, 474 N.Y.S.2d\\n\\n337, 347 (2d Dep’t 1984) (finding insufficient evidence for conspiracy to commit a Class C\\n\\nfelony where the relevant felony required the display of a weapon and evidence did not\\n\\nshow that defendant agreed to such a display), and New York’s prohibition against\\n\\nduplicity demands that an individual count may charge only one offense to ensure a\\n\\nunanimous verdict, see N.Y. Crim. Proc. Law § 200.30; People v. Keindl, 68 N.Y.2d 410, 418\\n\\n(1986), superseded on other grounds by statute, NYPL § 130.75, as recognized in People v. Tabon,\\n\\n\\n 6\\n\\f28 N.Y.3d 147, 154 (2016); People v. Dathan, 812 N.Y.S.2d 119, 120–21 (2d Dep’t 2006)\\n\\n(dismissing conspiracy count where it was “uncertain whether the jurors convicted the\\n\\ndefendant of conspiracy based on one or the other of the [C]lass A felony sales of which\\n\\nthe defendant was convicted, or based on the aggregate weight of an unknown\\n\\ncombination of lesser sales”).\\n\\n Here, the government met its burden of proving that the object offense in Santana‐\\n\\nFelix’s conspiracy conviction was second‐degree murder. The BIA did not err in looking\\n\\nto the indictment to determine the object of the conspiracy because, where the judgment\\n\\nreflects only the statute for the inchoate offense, the agency may turn to the record of\\n\\nconviction to determine the object offense. See Mizrahi, 492 F.3d at 163. The record of\\n\\nconviction for immigration purposes includes “the charging document, a plea agreement,\\n\\na verdict or judgment of conviction, a record of the sentence, or a plea colloquy\\n\\ntranscript.” Dickson v. Ashcroft, 346 F.3d 44, 53 (2d Cir. 2003); see also Lanferman v. BIA,\\n\\n576 F.3d 84, 89 n.3 (2d Cir. 2009). Because the record of conviction includes a charging\\n\\ndocument, the BIA did not err in relying on the indictment, which explicitly charged\\n\\nsecond‐degree murder as the object offense of the conspiracy charge.\\n\\n As a last resort, Santana‐Felix contends that the BIA should have disregarded the\\n\\nindictment because it was not signed by the district attorney. Santana‐Felix did not\\n\\npresent this argument on appeal to the BIA, and it is therefore waived. See Lin Zhong v.\\n\\nU.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that we generally will not\\n\\n\\n 7\\n\\faddress issues not raised before the BIA). Nevertheless, even if we were to reach the\\n\\nmerits of this argument, we would still conclude that the BIA properly relied on the\\n\\nindictment, which was a certified copy that reflected a typed signature of the district\\n\\nattorney. See Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) (holding that evidence is\\n\\nadmissible in removal proceedings as long as it does not violate due process, that is, as\\n\\nlong as it is “probative and its use is fundamentally fair.” (internal quotation marks\\n\\nomitted)); People v. Sanchez, 543 N.Y.S.2d 878, 879 (Bronx Sup. Ct. 1989) (“[I]t is the\\n\\ndecision of this court [that] the typewritten signature of the District Attorney is sufficient\\n\\nto satisfy the ‘signature’ requirement set forth in Criminal Procedure Law § 200.50(9).”);\\n\\nsee also 8 U.S.C. § 1229a(c)(3)(B) (allowing certified copies of documents to be used as\\n\\nproof of conviction).\\n\\n IV.\\n\\n Having determined that the object offense of Santana‐Felix’s conspiracy conviction\\n\\nwas second‐degree murder, we must determine whether second‐degree murder under\\n\\nNew York law constitutes an aggravated felony. We employ the same approach\\n\\ndescribed above: we first ask whether the state statute is a categorical match, and if it is\\n\\nnot, whether the statute is divisible so that we may apply the modified categorical\\n\\napproach. Santana‐Felix contends that second‐degree murder in violation of NYPL\\n\\n§ 125.25 is not a match to murder under 8 U.S.C. § 1101(a)(43)(A) because “it is far from\\n\\nclear that all subsections . . . fit the Board’s definition of an aggravated felony murder\\n\\n\\n 8\\n\\foffense.” Petitioner’s Br. at 31. But applying the categorical approach, second‐degree\\n\\nmurder is clearly an aggravated felony within the federal definition. See 8 U.S.C.\\n\\n§ 1101(a)(43)(A) (“The term ‘aggravated felony’ means . . . murder . . . .”). Under federal\\n\\nlaw, “[m]urder is the unlawful killing of a human being with malice aforethought,” 18\\n\\nU.S.C. § 1111(a), and includes both (1) first‐degree murder which encompasses\\n\\npremeditated and felony murder, see id., and (2) second‐degree murder which requires\\n\\nshowing “a heightened disregard for human life,” see United States v. Velazquez, 246 F.3d\\n\\n204, 215 (2d Cir. 2001). Section 125.25 of the NYPL likewise requires showing (1) intent\\n\\nto commit murder, (2) depraved indifference to human life, or (3) felony murder.\\n\\n Depraved indifference to human life has been defined by New York courts as\\n\\n“conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of\\n\\nthe life or lives of others, and so blameworthy as to warrant the same criminal liability as\\n\\nthat which the law imposes upon a person who intentionally causes the death of\\n\\nanother.” People v. Russell, 91 N.Y.2d 280, 287–88 (1998) (internal quotations omitted).\\n\\nDepraved indifference thus necessarily requires a showing of a heightened disregard for\\n\\nhuman life. See Matter of M‐W‐, 25 I. & N. Dec. 748, 756 (BIA 2012) (“‘[D]epraved mind\\n\\nmurder,’ which has been described as ‘outrageously reckless conduct’ committed with\\n\\n‘wantonness or total indifference for the value of human life’ is substantially similar to\\n\\nmurders marked by ‘extreme indifference to the value of human life.’”). Moreover,\\n\\ndefinitions of felony murder under both federal and New York state law are virtually\\n\\n\\n 9\\n\\fidentical and include the same list of predicate offenses.1 Thus, NYPL § 125.25\\n\\ncategorically fits within the federal definition of murder pursuant to 8 U.S.C.\\n\\n§ 1101(a)(43)(U) and is an aggravated felony.\\n\\n V.\\n\\n For the foregoing reasons, Santana‐Felix’s conviction for conspiracy in the second\\n\\ndegree to commit second‐degree murder under New York law constitutes an aggravated\\n\\nfelony. Accordingly, his petition for review is DENIED.\\n\\n\\n\\n\\n1\\n A felony murder under federal law constitutes first-degree murder and includes the following predicate offenses:\\n“any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child\\nabuse, burglary, or robbery.” 18 U.S.C. § 1111(a). A felony murder under New York law constitutes second-degree\\nmurder and includes the following predicate offenses: “robbery, burglary, kidnapping, arson, rape in the first degree,\\ncriminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first\\ndegree, or escape in the second degree.” NYPL § 125.25[3]. We are unaware of a situation where a felony murder\\nunder New York law would not also be murder under federal law.\\n\\n 10\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4395240/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"WALKER"},"judge2":{"kind":"string","value":"CHIN"},"judge3":{"kind":"string","value":"SULLIVAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4617987/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Juan Carlos SANTANA-FELIX, Petitioner, v. William P. BARR, United States Attorney General Respondent.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3850‐ag\nSantana‐Felix v. Barr\n BIA\n Sagerman, IJ\n A095 344 985\n\n\n United States Court of Appeals\n for the Second Circuit\n AUGUST TERM 2018\n\n No. 17‐3850\n\n JUAN CARLOS SANTANA‐FELIX,\n Petitioner,\n\n v.\n\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL\n Respondent.*\n\n ARGUED: FEBRUARY 15, 2019\n DECIDED: MAY 9, 2019\n\n\n\n\n Before: WALKER, CHIN, SULLIVAN, Circuit Judges.\n\n Petition for a review of a decision of the Board of Immigration Appeals (“BIA”)\nordering Petitioner’s removal based on a conviction for an aggravated felony. We deny\nthe petition for review on the grounds that Petitioner’s conviction for conspiracy in the\nsecond degree to commit a felony – here, murder in the second degree – under New York\nlaw is an aggravated felony.\n\n NICHOLAS J. PHILLIPS, Prisoners’ Legal Services of\n New York, Albany, New York, for Petitioner.\n\n*\n The Clerk of Court is respectfully directed to amend the official caption to conform to the above.\n\f REBEKAH NAHAS, Trial Attorney (Joseph H. Hunt,\n Assistant Attorney General, Briena L. Strippoli,\n Senior Litigation Counsel, on the brief), Office of\n Immigration Litigation, United States\n Department of Justice, Washington, DC, for\n Respondent.\n\nPER CURIAM:\n\n Petitioner Juan Carlos Santana‐Felix, a native and citizen of the Dominican\n\nRepublic, seeks review of the BIA’s October 24, 2017 affirmance of a June 15, 2017 decision\n\nof an Immigration Judge (“IJ”) ordering Santana‐Felix removed based on his conviction\n\nfor conspiracy in the second degree, in violation of New York Penal Law (“NYPL”)\n\n§ 105.15. In re Juan Carlos Santana‐Felix, No. A095 344 985 (B.I.A. Oct. 24, 2017), aff’g, No.\n\nA095 344 985 (Immig. Ct. Napanoch June 15, 2017). Because we find that Santana‐Felix’s\n\nconviction constitutes an aggravated felony, the petition for review is DENIED.\n\n I.\n\n Santana‐Felix is a native of the Dominican Republic and, since 2006, a lawful\n\npermanent resident of the United States. In 2013, he was convicted under NYPL § 105.15\n\nfor conspiracy in the second degree. An Immigration Judge ordered his removal in part\n\nbased on this offense. The BIA affirmed the IJ’s order of removal based on two\n\naggravated felony counts: an aggravated felony crime of violence under 8 U.S.C.\n\n§ 1101(a)(43)(F) as defined in 18 U.S.C. § 16(b), and conspiracy to commit an aggravated\n\nfelony under 8 U.S.C. § 1101(a)(43)(U). Therefore, only these two grounds are before us.\n\n 2\n\fSee Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).\n\n The Supreme Court has since held that the crime of violence definition in § 16(b)\n\nis unconstitutionally void for vagueness. Sessions v. Dimaya, 138 S. Ct. 1204, 1215–16\n\n(2018). Accordingly, the crime of violence determination cannot stand, and the only\n\npossible remaining basis for Santana‐Felix’s removal is his conviction under NYPL\n\n§ 105.15 for conspiracy in the second degree to commit second‐degree murder. We\n\nreview de novo whether this conviction is an aggravated felony. Pierre v. Gonzales, 502\n\nF.3d 109, 113 (2d Cir. 2007).\n\n II.\n\n In determining whether a state conviction constitutes an aggravated felony, we\n\ngenerally begin by applying the categorical approach to determine “whether the state\n\nstatute defining the crime of conviction categorically fits within the generic federal\n\ndefinition of a corresponding” offense listed in the Immigration and Nationality Act\n\n(“INA”). Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder,\n\n569 U.S. 184, 190 (2013)). Under this approach, we look only to the statute of conviction\n\nto determine whether there is a categorical match and “‘presume that the conviction\n\nrested upon nothing more than the least of the acts criminalized’ under the state statute.”\n\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe, 569 U.S. at 190–91).\n\n When there is no categorical match, we next consider whether the state statute is\n\ndivisible under the modified categorical approach – that is, whether the statute\n\n\n 3\n\fencompasses “elements in the alternative, and . . . [thus] multiple crimes,” as opposed to\n\nalternative means to commit the same crime. Mathis v. United States, 136 S. Ct. 2243, 2249,\n\n2257 (2016). If the statute is divisible, we may look beyond the statute to the record of\n\nconviction, including the indictment, to determine whether the conviction is an\n\naggravated felony. See id. at 2249.\n\n NYPL § 105.15 is not a categorical match to the federal definition of conspiracy,\n\nwhich is an aggravated felony listed in the INA under 8 U.S.C. § 1101(a)(43)(U). Under\n\nNew York law, “[a] person is guilty of conspiracy in the second degree when, with intent\n\nthat conduct constituting a [C]lass A felony be performed, he agrees with one or more\n\npersons to engage in or cause the performance of such conduct.” NYPL § 105.15. The\n\nINA’s definition of conspiracy, however, requires that the conspiracy be to commit an\n\n“aggravated felony.” 8 U.S.C. § 1101(a)(43)(U). Thus, we must ask whether all Class A\n\nfelonies under New York law are “aggravated felon[ies]” under the INA. Id. Some are\n\nnot. Compare NYPL § 220.21 (providing that possession of controlled substance is Class\n\nA felony), with 8 U.S.C. § 1101(a)(43)(B) (designating drug trafficking crimes as\n\naggravated felonies only if they involve “illicit trafficking,” which does not include mere\n\npossession). Accordingly, NYPL § 105.15 is not categorically an aggravated felony under\n\nthe INA.\n\n III.\n\n Nevertheless, when the ground of removal involves an inchoate crime like\n\n\n 4\n\fsolicitation, attempt, or conspiracy, we have taken an approach analogous to the\n\nmodified categorical approach in which we consider only whether the “object crime”\n\ncharged is an aggravated felony. This is because, absent proof of a specific intent to\n\ncommit the object crime, an inchoate offense cannot lead to a conviction. See Mizrahi v.\n\nGonzales, 492 F.3d 156, 161 (2d Cir. 2007).\n\n In Mizrahi, we concluded that a New York conviction for solicitation under NYPL\n\n§ 100.05(1) constituted a controlled substance offense under the INA because the object\n\nof the solicitation was a controlled substance offense and proof of “intent to solicit the\n\ncommission of [the] particular crime” was necessary to the conviction. Id. In reaching\n\nthat conclusion, we relied on both “New York’s Criminal Jury Instructions, which require\n\nthat juries be charged as to both the specific object crime of an alleged solicitation and\n\nthat crime’s statutory definition,” and New York caselaw, which holds that intent to\n\ncommit the underlying crime is an essential element of a solicitation conviction. Id. at\n\n161–62 (citing People v. Cheathem, 658 N.Y.S.2d 84, 85 (2d Dep’t 1997)). We held “that an\n\ninchoate offense cannot be isolated from the object statute that defines the crime’s specific\n\nintent.” Id. at 163.\n\n We reach the same result here. Absent intent to commit the object offense,\n\nconspiracy is not a crime. Id. at 161 (“[C]riminality arises only when the inchoate conduct\n\nhas the violation of some other law as its specifically intended objective.”). New York’s\n\njury instruction for a conspiracy charge requires an instruction as to the specific object of\n\n\n 5\n\fthe conspiracy and the definition of that offense. Criminal Jury Instructions New York\n\n§ 105.15. It further provides that “[t]he defendant must intend that conduct constituting\n\na [C]lass A felony be performed,” and intent “means conscious objective or purpose.” Id.\n\n“Thus, a person acts with the intent that conduct constituting a [C]lass A felony be\n\nperformed when his or her conscious objective or purpose is that such conduct be\n\nperformed.” Id.\n\n New York caselaw also supports this conclusion, since the prosecution must prove\n\nthe defendant had the intent to commit the specific object offense. “To establish the\n\ndefendant’s guilt of conspiracy in the second degree,” the State must “prove that, with\n\nthe intent that a [C]lass A felony be committed, the defendant agreed with others to\n\nengage in or cause the felony to be committed and that one of the conspirators committed\n\nan overt act in furtherance of the criminal scheme.” People v. Arroyo, 93 N.Y.2d 990, 991\n\n(1999) (citation omitted). Moreover, the prosecution must show that the agreement\n\ncontemplated the elements of the substantive offense, see, e.g., People v. Joyce, 474 N.Y.S.2d\n\n337, 347 (2d Dep’t 1984) (finding insufficient evidence for conspiracy to commit a Class C\n\nfelony where the relevant felony required the display of a weapon and evidence did not\n\nshow that defendant agreed to such a display), and New York’s prohibition against\n\nduplicity demands that an individual count may charge only one offense to ensure a\n\nunanimous verdict, see N.Y. Crim. Proc. Law § 200.30; People v. Keindl, 68 N.Y.2d 410, 418\n\n(1986), superseded on other grounds by statute, NYPL § 130.75, as recognized in People v. Tabon,\n\n\n 6\n\f28 N.Y.3d 147, 154 (2016); People v. Dathan, 812 N.Y.S.2d 119, 120–21 (2d Dep’t 2006)\n\n(dismissing conspiracy count where it was “uncertain whether the jurors convicted the\n\ndefendant of conspiracy based on one or the other of the [C]lass A felony sales of which\n\nthe defendant was convicted, or based on the aggregate weight of an unknown\n\ncombination of lesser sales”).\n\n Here, the government met its burden of proving that the object offense in Santana‐\n\nFelix’s conspiracy conviction was second‐degree murder. The BIA did not err in looking\n\nto the indictment to determine the object of the conspiracy because, where the judgment\n\nreflects only the statute for the inchoate offense, the agency may turn to the record of\n\nconviction to determine the object offense. See Mizrahi, 492 F.3d at 163. The record of\n\nconviction for immigration purposes includes “the charging document, a plea agreement,\n\na verdict or judgment of conviction, a record of the sentence, or a plea colloquy\n\ntranscript.” Dickson v. Ashcroft, 346 F.3d 44, 53 (2d Cir. 2003); see also Lanferman v. BIA,\n\n576 F.3d 84, 89 n.3 (2d Cir. 2009). Because the record of conviction includes a charging\n\ndocument, the BIA did not err in relying on the indictment, which explicitly charged\n\nsecond‐degree murder as the object offense of the conspiracy charge.\n\n As a last resort, Santana‐Felix contends that the BIA should have disregarded the\n\nindictment because it was not signed by the district attorney. Santana‐Felix did not\n\npresent this argument on appeal to the BIA, and it is therefore waived. See Lin Zhong v.\n\nU.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that we generally will not\n\n\n 7\n\faddress issues not raised before the BIA). Nevertheless, even if we were to reach the\n\nmerits of this argument, we would still conclude that the BIA properly relied on the\n\nindictment, which was a certified copy that reflected a typed signature of the district\n\nattorney. See Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) (holding that evidence is\n\nadmissible in removal proceedings as long as it does not violate due process, that is, as\n\nlong as it is “probative and its use is fundamentally fair.” (internal quotation marks\n\nomitted)); People v. Sanchez, 543 N.Y.S.2d 878, 879 (Bronx Sup. Ct. 1989) (“[I]t is the\n\ndecision of this court [that] the typewritten signature of the District Attorney is sufficient\n\nto satisfy the ‘signature’ requirement set forth in Criminal Procedure Law § 200.50(9).”);\n\nsee also 8 U.S.C. § 1229a(c)(3)(B) (allowing certified copies of documents to be used as\n\nproof of conviction).\n\n IV.\n\n Having determined that the object offense of Santana‐Felix’s conspiracy conviction\n\nwas second‐degree murder, we must determine whether second‐degree murder under\n\nNew York law constitutes an aggravated felony. We employ the same approach\n\ndescribed above: we first ask whether the state statute is a categorical match, and if it is\n\nnot, whether the statute is divisible so that we may apply the modified categorical\n\napproach. Santana‐Felix contends that second‐degree murder in violation of NYPL\n\n§ 125.25 is not a match to murder under 8 U.S.C. § 1101(a)(43)(A) because “it is far from\n\nclear that all subsections . . . fit the Board’s definition of an aggravated felony murder\n\n\n 8\n\foffense.” Petitioner’s Br. at 31. But applying the categorical approach, second‐degree\n\nmurder is clearly an aggravated felony within the federal definition. See 8 U.S.C.\n\n§ 1101(a)(43)(A) (“The term ‘aggravated felony’ means . . . murder . . . .”). Under federal\n\nlaw, “[m]urder is the unlawful killing of a human being with malice aforethought,” 18\n\nU.S.C. § 1111(a), and includes both (1) first‐degree murder which encompasses\n\npremeditated and felony murder, see id., and (2) second‐degree murder which requires\n\nshowing “a heightened disregard for human life,” see United States v. Velazquez, 246 F.3d\n\n204, 215 (2d Cir. 2001). Section 125.25 of the NYPL likewise requires showing (1) intent\n\nto commit murder, (2) depraved indifference to human life, or (3) felony murder.\n\n Depraved indifference to human life has been defined by New York courts as\n\n“conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of\n\nthe life or lives of others, and so blameworthy as to warrant the same criminal liability as\n\nthat which the law imposes upon a person who intentionally causes the death of\n\nanother.” People v. Russell, 91 N.Y.2d 280, 287–88 (1998) (internal quotations omitted).\n\nDepraved indifference thus necessarily requires a showing of a heightened disregard for\n\nhuman life. See Matter of M‐W‐, 25 I. & N. Dec. 748, 756 (BIA 2012) (“‘[D]epraved mind\n\nmurder,’ which has been described as ‘outrageously reckless conduct’ committed with\n\n‘wantonness or total indifference for the value of human life’ is substantially similar to\n\nmurders marked by ‘extreme indifference to the value of human life.’”). Moreover,\n\ndefinitions of felony murder under both federal and New York state law are virtually\n\n\n 9\n\fidentical and include the same list of predicate offenses.1 Thus, NYPL § 125.25\n\ncategorically fits within the federal definition of murder pursuant to 8 U.S.C.\n\n§ 1101(a)(43)(U) and is an aggravated felony.\n\n V.\n\n For the foregoing reasons, Santana‐Felix’s conviction for conspiracy in the second\n\ndegree to commit second‐degree murder under New York law constitutes an aggravated\n\nfelony. Accordingly, his petition for review is DENIED.\n\n\n\n\n1\n A felony murder under federal law constitutes first-degree murder and includes the following predicate offenses:\n“any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child\nabuse, burglary, or robbery.” 18 U.S.C. § 1111(a). A felony murder under New York law constitutes second-degree\nmurder and includes the following predicate offenses: “robbery, burglary, kidnapping, arson, rape in the first degree,\ncriminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first\ndegree, or escape in the second degree.” NYPL § 125.25[3]. We are unaware of a situation where a felony murder\nunder New York law would not also be murder under federal law.\n\n 10\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Juan Carlos SANTANA-FELIX, Petitioner, v. William P. BARR, United States Attorney General Respondent.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3850‐ag\\nSantana‐Felix v. Barr\\n BIA\\n Sagerman, IJ\\n A095 344 985\\n\\n\\n United States Court of Appeals\\n for the Second Circuit\\n AUGUST TERM 2018\\n\\n No. 17‐3850\\n\\n JUAN CARLOS SANTANA‐FELIX,\\n Petitioner,\\n\\n v.\\n\\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL\\n Respondent.*\\n\\n ARGUED: FEBRUARY 15, 2019\\n DECIDED: MAY 9, 2019\\n\\n\\n\\n\\n Before: WALKER, CHIN, SULLIVAN, Circuit Judges.\\n\\n Petition for a review of a decision of the Board of Immigration Appeals (“BIA”)\\nordering Petitioner’s removal based on a conviction for an aggravated felony. We deny\\nthe petition for review on the grounds that Petitioner’s conviction for conspiracy in the\\nsecond degree to commit a felony – here, murder in the second degree – under New York\\nlaw is an aggravated felony.\\n\\n NICHOLAS J. PHILLIPS, Prisoners’ Legal Services of\\n New York, Albany, New York, for Petitioner.\\n\\n*\\n The Clerk of Court is respectfully directed to amend the official caption to conform to the above.\\n\\f REBEKAH NAHAS, Trial Attorney (Joseph H. Hunt,\\n Assistant Attorney General, Briena L. Strippoli,\\n Senior Litigation Counsel, on the brief), Office of\\n Immigration Litigation, United States\\n Department of Justice, Washington, DC, for\\n Respondent.\\n\\nPER CURIAM:\\n\\n Petitioner Juan Carlos Santana‐Felix, a native and citizen of the Dominican\\n\\nRepublic, seeks review of the BIA’s October 24, 2017 affirmance of a June 15, 2017 decision\\n\\nof an Immigration Judge (“IJ”) ordering Santana‐Felix removed based on his conviction\\n\\nfor conspiracy in the second degree, in violation of New York Penal Law (“NYPL”)\\n\\n§ 105.15. In re Juan Carlos Santana‐Felix, No. A095 344 985 (B.I.A. Oct. 24, 2017), aff’g, No.\\n\\nA095 344 985 (Immig. Ct. Napanoch June 15, 2017). Because we find that Santana‐Felix’s\\n\\nconviction constitutes an aggravated felony, the petition for review is DENIED.\\n\\n I.\\n\\n Santana‐Felix is a native of the Dominican Republic and, since 2006, a lawful\\n\\npermanent resident of the United States. In 2013, he was convicted under NYPL § 105.15\\n\\nfor conspiracy in the second degree. An Immigration Judge ordered his removal in part\\n\\nbased on this offense. The BIA affirmed the IJ’s order of removal based on two\\n\\naggravated felony counts: an aggravated felony crime of violence under 8 U.S.C.\\n\\n§ 1101(a)(43)(F) as defined in 18 U.S.C. § 16(b), and conspiracy to commit an aggravated\\n\\nfelony under 8 U.S.C. § 1101(a)(43)(U). Therefore, only these two grounds are before us.\\n\\n 2\\n\\fSee Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).\\n\\n The Supreme Court has since held that the crime of violence definition in § 16(b)\\n\\nis unconstitutionally void for vagueness. Sessions v. Dimaya, 138 S. Ct. 1204, 1215–16\\n\\n(2018). Accordingly, the crime of violence determination cannot stand, and the only\\n\\npossible remaining basis for Santana‐Felix’s removal is his conviction under NYPL\\n\\n§ 105.15 for conspiracy in the second degree to commit second‐degree murder. We\\n\\nreview de novo whether this conviction is an aggravated felony. Pierre v. Gonzales, 502\\n\\nF.3d 109, 113 (2d Cir. 2007).\\n\\n II.\\n\\n In determining whether a state conviction constitutes an aggravated felony, we\\n\\ngenerally begin by applying the categorical approach to determine “whether the state\\n\\nstatute defining the crime of conviction categorically fits within the generic federal\\n\\ndefinition of a corresponding” offense listed in the Immigration and Nationality Act\\n\\n(“INA”). Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder,\\n\\n569 U.S. 184, 190 (2013)). Under this approach, we look only to the statute of conviction\\n\\nto determine whether there is a categorical match and “‘presume that the conviction\\n\\nrested upon nothing more than the least of the acts criminalized’ under the state statute.”\\n\\nMellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe, 569 U.S. at 190–91).\\n\\n When there is no categorical match, we next consider whether the state statute is\\n\\ndivisible under the modified categorical approach – that is, whether the statute\\n\\n\\n 3\\n\\fencompasses “elements in the alternative, and . . . [thus] multiple crimes,” as opposed to\\n\\nalternative means to commit the same crime. Mathis v. United States, 136 S. Ct. 2243, 2249,\\n\\n2257 (2016). If the statute is divisible, we may look beyond the statute to the record of\\n\\nconviction, including the indictment, to determine whether the conviction is an\\n\\naggravated felony. See id. at 2249.\\n\\n NYPL § 105.15 is not a categorical match to the federal definition of conspiracy,\\n\\nwhich is an aggravated felony listed in the INA under 8 U.S.C. § 1101(a)(43)(U). Under\\n\\nNew York law, “[a] person is guilty of conspiracy in the second degree when, with intent\\n\\nthat conduct constituting a [C]lass A felony be performed, he agrees with one or more\\n\\npersons to engage in or cause the performance of such conduct.” NYPL § 105.15. The\\n\\nINA’s definition of conspiracy, however, requires that the conspiracy be to commit an\\n\\n“aggravated felony.” 8 U.S.C. § 1101(a)(43)(U). Thus, we must ask whether all Class A\\n\\nfelonies under New York law are “aggravated felon[ies]” under the INA. Id. Some are\\n\\nnot. Compare NYPL § 220.21 (providing that possession of controlled substance is Class\\n\\nA felony), with 8 U.S.C. § 1101(a)(43)(B) (designating drug trafficking crimes as\\n\\naggravated felonies only if they involve “illicit trafficking,” which does not include mere\\n\\npossession). Accordingly, NYPL § 105.15 is not categorically an aggravated felony under\\n\\nthe INA.\\n\\n III.\\n\\n Nevertheless, when the ground of removal involves an inchoate crime like\\n\\n\\n 4\\n\\fsolicitation, attempt, or conspiracy, we have taken an approach analogous to the\\n\\nmodified categorical approach in which we consider only whether the “object crime”\\n\\ncharged is an aggravated felony. This is because, absent proof of a specific intent to\\n\\ncommit the object crime, an inchoate offense cannot lead to a conviction. See Mizrahi v.\\n\\nGonzales, 492 F.3d 156, 161 (2d Cir. 2007).\\n\\n In Mizrahi, we concluded that a New York conviction for solicitation under NYPL\\n\\n§ 100.05(1) constituted a controlled substance offense under the INA because the object\\n\\nof the solicitation was a controlled substance offense and proof of “intent to solicit the\\n\\ncommission of [the] particular crime” was necessary to the conviction. Id. In reaching\\n\\nthat conclusion, we relied on both “New York’s Criminal Jury Instructions, which require\\n\\nthat juries be charged as to both the specific object crime of an alleged solicitation and\\n\\nthat crime’s statutory definition,” and New York caselaw, which holds that intent to\\n\\ncommit the underlying crime is an essential element of a solicitation conviction. Id. at\\n\\n161–62 (citing People v. Cheathem, 658 N.Y.S.2d 84, 85 (2d Dep’t 1997)). We held “that an\\n\\ninchoate offense cannot be isolated from the object statute that defines the crime’s specific\\n\\nintent.” Id. at 163.\\n\\n We reach the same result here. Absent intent to commit the object offense,\\n\\nconspiracy is not a crime. Id. at 161 (“[C]riminality arises only when the inchoate conduct\\n\\nhas the violation of some other law as its specifically intended objective.”). New York’s\\n\\njury instruction for a conspiracy charge requires an instruction as to the specific object of\\n\\n\\n 5\\n\\fthe conspiracy and the definition of that offense. Criminal Jury Instructions New York\\n\\n§ 105.15. It further provides that “[t]he defendant must intend that conduct constituting\\n\\na [C]lass A felony be performed,” and intent “means conscious objective or purpose.” Id.\\n\\n“Thus, a person acts with the intent that conduct constituting a [C]lass A felony be\\n\\nperformed when his or her conscious objective or purpose is that such conduct be\\n\\nperformed.” Id.\\n\\n New York caselaw also supports this conclusion, since the prosecution must prove\\n\\nthe defendant had the intent to commit the specific object offense. “To establish the\\n\\ndefendant’s guilt of conspiracy in the second degree,” the State must “prove that, with\\n\\nthe intent that a [C]lass A felony be committed, the defendant agreed with others to\\n\\nengage in or cause the felony to be committed and that one of the conspirators committed\\n\\nan overt act in furtherance of the criminal scheme.” People v. Arroyo, 93 N.Y.2d 990, 991\\n\\n(1999) (citation omitted). Moreover, the prosecution must show that the agreement\\n\\ncontemplated the elements of the substantive offense, see, e.g., People v. Joyce, 474 N.Y.S.2d\\n\\n337, 347 (2d Dep’t 1984) (finding insufficient evidence for conspiracy to commit a Class C\\n\\nfelony where the relevant felony required the display of a weapon and evidence did not\\n\\nshow that defendant agreed to such a display), and New York’s prohibition against\\n\\nduplicity demands that an individual count may charge only one offense to ensure a\\n\\nunanimous verdict, see N.Y. Crim. Proc. Law § 200.30; People v. Keindl, 68 N.Y.2d 410, 418\\n\\n(1986), superseded on other grounds by statute, NYPL § 130.75, as recognized in People v. Tabon,\\n\\n\\n 6\\n\\f28 N.Y.3d 147, 154 (2016); People v. Dathan, 812 N.Y.S.2d 119, 120–21 (2d Dep’t 2006)\\n\\n(dismissing conspiracy count where it was “uncertain whether the jurors convicted the\\n\\ndefendant of conspiracy based on one or the other of the [C]lass A felony sales of which\\n\\nthe defendant was convicted, or based on the aggregate weight of an unknown\\n\\ncombination of lesser sales”).\\n\\n Here, the government met its burden of proving that the object offense in Santana‐\\n\\nFelix’s conspiracy conviction was second‐degree murder. The BIA did not err in looking\\n\\nto the indictment to determine the object of the conspiracy because, where the judgment\\n\\nreflects only the statute for the inchoate offense, the agency may turn to the record of\\n\\nconviction to determine the object offense. See Mizrahi, 492 F.3d at 163. The record of\\n\\nconviction for immigration purposes includes “the charging document, a plea agreement,\\n\\na verdict or judgment of conviction, a record of the sentence, or a plea colloquy\\n\\ntranscript.” Dickson v. Ashcroft, 346 F.3d 44, 53 (2d Cir. 2003); see also Lanferman v. BIA,\\n\\n576 F.3d 84, 89 n.3 (2d Cir. 2009). Because the record of conviction includes a charging\\n\\ndocument, the BIA did not err in relying on the indictment, which explicitly charged\\n\\nsecond‐degree murder as the object offense of the conspiracy charge.\\n\\n As a last resort, Santana‐Felix contends that the BIA should have disregarded the\\n\\nindictment because it was not signed by the district attorney. Santana‐Felix did not\\n\\npresent this argument on appeal to the BIA, and it is therefore waived. See Lin Zhong v.\\n\\nU.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that we generally will not\\n\\n\\n 7\\n\\faddress issues not raised before the BIA). Nevertheless, even if we were to reach the\\n\\nmerits of this argument, we would still conclude that the BIA properly relied on the\\n\\nindictment, which was a certified copy that reflected a typed signature of the district\\n\\nattorney. See Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) (holding that evidence is\\n\\nadmissible in removal proceedings as long as it does not violate due process, that is, as\\n\\nlong as it is “probative and its use is fundamentally fair.” (internal quotation marks\\n\\nomitted)); People v. Sanchez, 543 N.Y.S.2d 878, 879 (Bronx Sup. Ct. 1989) (“[I]t is the\\n\\ndecision of this court [that] the typewritten signature of the District Attorney is sufficient\\n\\nto satisfy the ‘signature’ requirement set forth in Criminal Procedure Law § 200.50(9).”);\\n\\nsee also 8 U.S.C. § 1229a(c)(3)(B) (allowing certified copies of documents to be used as\\n\\nproof of conviction).\\n\\n IV.\\n\\n Having determined that the object offense of Santana‐Felix’s conspiracy conviction\\n\\nwas second‐degree murder, we must determine whether second‐degree murder under\\n\\nNew York law constitutes an aggravated felony. We employ the same approach\\n\\ndescribed above: we first ask whether the state statute is a categorical match, and if it is\\n\\nnot, whether the statute is divisible so that we may apply the modified categorical\\n\\napproach. Santana‐Felix contends that second‐degree murder in violation of NYPL\\n\\n§ 125.25 is not a match to murder under 8 U.S.C. § 1101(a)(43)(A) because “it is far from\\n\\nclear that all subsections . . . fit the Board’s definition of an aggravated felony murder\\n\\n\\n 8\\n\\foffense.” Petitioner’s Br. at 31. But applying the categorical approach, second‐degree\\n\\nmurder is clearly an aggravated felony within the federal definition. See 8 U.S.C.\\n\\n§ 1101(a)(43)(A) (“The term ‘aggravated felony’ means . . . murder . . . .”). Under federal\\n\\nlaw, “[m]urder is the unlawful killing of a human being with malice aforethought,” 18\\n\\nU.S.C. § 1111(a), and includes both (1) first‐degree murder which encompasses\\n\\npremeditated and felony murder, see id., and (2) second‐degree murder which requires\\n\\nshowing “a heightened disregard for human life,” see United States v. Velazquez, 246 F.3d\\n\\n204, 215 (2d Cir. 2001). Section 125.25 of the NYPL likewise requires showing (1) intent\\n\\nto commit murder, (2) depraved indifference to human life, or (3) felony murder.\\n\\n Depraved indifference to human life has been defined by New York courts as\\n\\n“conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of\\n\\nthe life or lives of others, and so blameworthy as to warrant the same criminal liability as\\n\\nthat which the law imposes upon a person who intentionally causes the death of\\n\\nanother.” People v. Russell, 91 N.Y.2d 280, 287–88 (1998) (internal quotations omitted).\\n\\nDepraved indifference thus necessarily requires a showing of a heightened disregard for\\n\\nhuman life. See Matter of M‐W‐, 25 I. & N. Dec. 748, 756 (BIA 2012) (“‘[D]epraved mind\\n\\nmurder,’ which has been described as ‘outrageously reckless conduct’ committed with\\n\\n‘wantonness or total indifference for the value of human life’ is substantially similar to\\n\\nmurders marked by ‘extreme indifference to the value of human life.’”). Moreover,\\n\\ndefinitions of felony murder under both federal and New York state law are virtually\\n\\n\\n 9\\n\\fidentical and include the same list of predicate offenses.1 Thus, NYPL § 125.25\\n\\ncategorically fits within the federal definition of murder pursuant to 8 U.S.C.\\n\\n§ 1101(a)(43)(U) and is an aggravated felony.\\n\\n V.\\n\\n For the foregoing reasons, Santana‐Felix’s conviction for conspiracy in the second\\n\\ndegree to commit second‐degree murder under New York law constitutes an aggravated\\n\\nfelony. Accordingly, his petition for review is DENIED.\\n\\n\\n\\n\\n1\\n A felony murder under federal law constitutes first-degree murder and includes the following predicate offenses:\\n“any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child\\nabuse, burglary, or robbery.” 18 U.S.C. § 1111(a). A felony murder under New York law constitutes second-degree\\nmurder and includes the following predicate offenses: “robbery, burglary, kidnapping, arson, rape in the first degree,\\ncriminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first\\ndegree, or escape in the second degree.” NYPL § 125.25[3]. We are unaware of a situation where a felony murder\\nunder New York law would not also be murder under federal law.\\n\\n 10\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1986,"cells":{"id":{"kind":"number","value":4618579,"string":"4,618,579"},"name":{"kind":"string","value":"IQ DENTAL SUPPLY, INC., Plaintiff-Appellant, v. HENRY SCHEIN, INC., Patterson Companies, Inc., Benco Dental Supply Company, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"IQ Dental Supply, Inc. v. Henry Schein, Inc."},"decision_date":{"kind":"string","value":"2019-05-10"},"docket_number":{"kind":"string","value":"18-175-cv; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Walker, Jacobs, Pooler\", \"parties\": \"\", \"opinions\": [{\"author\": \"No. 17-cv-4834 - Brian M. Cogan, Judge\", \"type\": \"010combined\", \"text\": \"18‐175‐cv\\n IQ Dental Supply, Inc. v. Henry Schein, Inc.\\n\\n 1\\n\\n 2 In the\\n 3 United States Court of Appeals\\n 4 For the Second Circuit\\n 5 ________\\n 6\\n 7 AUGUST TERM, 2018\\n 8\\n 9 ARGUED: SEPTEMBER 13, 2018\\n10 DECIDED: MAY 10, 2019\\n11\\n12 No. 18‐175‐cv\\n13\\n14 IQ DENTAL SUPPLY, INC.,\\n15 Plaintiff‐Appellant,\\n16\\n17 v.\\n18\\n19 HENRY SCHEIN, INC., PATTERSON COMPANIES, INC., BENCO DENTAL\\n20 SUPPLY COMPANY,\\n21 Defendants‐Appellees.\\n22 ________\\n23\\n24 Appeal from the United States District Court\\n25 for the Eastern District of New York.\\n26 No. 17‐cv‐4834 – Brian M. Cogan, Judge.\\n27 ________\\n28\\n29 Before: WALKER, JACOBS, and POOLER, Circuit Judges.\\n30 ________\\n31\\n32 This case involves allegations that three large dental‐supply\\n\\n33 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\\n\\f 2 No. 18‐175‐cv\\n\\n 1 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\\n\\n 2 to violate the antitrust laws by engineering the boycott of an online\\n\\n 3 distribution portal, SourceOne, Inc. (“SourceOne”), and dental\\n\\n 4 manufacturers and suppliers associated with SourceOne. The\\n\\n 5 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\\n\\n 6 distributor that sold dental products through SourceOne’s online\\n\\n 7 portals. IQ sued the Defendants in the United States District Court for\\n\\n 8 the Eastern District of New York alleging violations of federal and\\n\\n 9 state antitrust laws and asserting common law tort claims. The district\\n\\n10 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\\n\\n11 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\\n\\n12 appeals that decision.\\n\\n13 We affirm the district court’s dismissal of IQ’s claim that it has\\n\\n14 antitrust standing to challenge the boycott of SourceOne and the state\\n\\n15 dental associations (“SDAs”) that had partnered with SourceOne. As\\n\\n16 to IQ’s claim that it has standing to challenge injury inflicted by the\\n\\n17 direct boycott of its business, however, we find that IQ’s antitrust and\\n\\n18 tort claims may go forward on these direct boycott allegations only.\\n\\n19 Accordingly, we vacate in part the judgment of the district court and\\n\\n20 remand the case for further proceedings consistent with this opinion.\\n\\n21 ________\\n22\\n23 LAWRENCE FOX, Duane Morris LLP, New York, NY\\n24 (William B. Pollard, Amy C. Gross, Duane Morris\\n\\f 3 No. 18‐175‐cv\\n\\n 1 LLP, New York, NY; J. Manly Parks, Robert M.\\n 2 Palumbos, Duane Morris LLP, Philadelphia, PA,\\n 3 on the brief), for Plaintiff‐Appellant.\\n\\n 4 RICHARD C. GODFREY, Kirkland & Ellis LLP,\\n 5 Chicago, IL (Barack S. Echols, Kirkland & Ellis\\n 6 LLP, Chicago, IL; Colin R. Kass, Adrian Fontecilla,\\n 7 Proskauer Rose LLP, Washington, DC; Bradley I.\\n 8 Ruskin, Proskauer Rose LLP, New York, NY, on the\\n 9 brief), for Defendant‐Appellee Henry Schein, Inc.\\n\\n10 James J. Long, Scott M. Flaherty, Briggs and\\n11 Morgan, P.A., Minneapolis, MN, for Defendant‐\\n12 Appellee Patterson Companies, Inc.\\n\\n13 Howard D. Scher, Thomas P. Manning, Samantha\\n14 L. Southall, Buchanan Ingersoll & Rooney PC,\\n15 Philadelphia, PA, for Defendant‐Appellee Benco\\n16 Dental Supply Company.\\n\\n17 ________\\n18\\n19 JOHN M. WALKER, JR., Circuit Judge.\\n\\n20 This case involves allegations that three large dental‐supply\\n\\n21 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\\n\\n22 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\\n\\n23 to violate the antitrust laws by engineering the boycott of an online\\n\\n24 distribution portal, SourceOne, Inc. (“SourceOne”), and of dental\\n\\n25 manufacturers and suppliers associated with SourceOne. The\\n\\n26 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\\n\\n27 distributor that sold dental products through SourceOne’s online\\n\\n28 portals. IQ sued the Defendants in the United States District Court for\\n\\f 4 No. 18‐175‐cv\\n\\n 1 the Eastern District of New York alleging violations of federal and\\n\\n 2 state antitrust laws and asserting common law tort claims. The district\\n\\n 3 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\\n\\n 4 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\\n\\n 5 appeals that decision.\\n\\n 6 We affirm the district court’s dismissal of IQ’s claim that it has\\n\\n 7 antitrust standing to challenge the boycott of SourceOne and the state\\n\\n 8 dental associations (“SDAs”) that had partnered with SourceOne. As\\n\\n 9 to IQ’s claim that it has standing to challenge injury inflicted by the\\n\\n10 direct boycott of its business, however, we find that IQ’s antitrust and\\n\\n11 tort claims may go forward on these direct boycott allegations only.\\n\\n12 Accordingly, we vacate in part the judgment of the district court and\\n\\n13 remand the case for further proceedings consistent with this opinion.\\n\\n14 BACKGROUND\\n\\n15 There are only a small number of dental‐supply companies that\\n\\n16 distribute products to dental practices. Three of those companies, the\\n\\n17 Defendants, occupy approximately 80% of the dental‐supply\\n\\n18 distribution market.1 They purchase dental supplies and equipment\\n\\n19 from different manufacturers, and then sell the products to dental\\n\\n20 practices nationwide. This one‐stop‐shop model obviates the need for\\n\\n 1As we must at this stage, we take all of IQ’s well‐pleaded facts as true.\\n See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).\\n\\f 5 No. 18‐175‐cv\\n\\n 1 dental practices to purchase their dental equipment from each\\n\\n 2 manufacturer.\\n\\n 3 IQ is also a distributor of dental supplies, albeit one with\\n\\n 4 considerably less market share than any of the Defendants. IQ entered\\n\\n 5 the market in 2009. Beginning in 2014, IQ adopted a new distribution\\n\\n 6 model. Instead of distributing dental supplies through the traditional\\n\\n 7 method of deploying on‐the‐ground sales teams around the country\\n\\n 8 (the model used by the Defendants) IQ distributed dental supplies\\n\\n 9 through an online portal hosted by SourceOne.\\n\\n10 SourceOne’s online portal is a website where dental practices can\\n\\n11 purchase their supplies. SourceOne itself does not sell any dental\\n\\n12 supplies through the website but serves as the platform through\\n\\n13 which dental‐supply distributors, such as IQ, sell products to dental\\n\\n14 offices. The distributors that used SourceOne’s portals pay SourceOne\\n\\n15 a commission for each sale made through the website. In 2013,\\n\\n16 SourceOne launched additional distribution websites in partnership\\n\\n17 with the SDAs in Texas, Arizona, and Nevada. These SDA‐specific\\n\\n18 sites operated much like SourceOne’s own portal, but each SDA had\\n\\n19 its own unique domain name. SourceOne remitted a portion of their\\n\\n20 commission to the SDA for each sale made through an SDA‐specific\\n\\n21 website.\\n\\f 6 No. 18‐175‐cv\\n\\n 1 IQ was not SourceOne’s first distribution partner. Two other\\n\\n 2 distributors—DDS Dental Supply and Arnold Dental Supply (“DDS\\n\\n 3 and Arnold”)—distributed products through SourceOne before IQ\\n\\n 4 reached its agreement with SourceOne. But sometime around April\\n\\n 5 2014 both DDS and Arnold stopped selling through SourceOne\\n\\n 6 because the Defendants pressured dental‐supply manufacturers to\\n\\n 7 stop supplying DDS and Arnold due to their arrangement with\\n\\n 8 SourceOne. After losing DDS and Arnold as distribution partners,\\n\\n 9 SourceOne tried to enlist a third distributor to supply dental\\n\\n10 products, but that distributor declined, allegedly because of the same\\n\\n11 anticompetitive behavior by the Defendants that had caused DDS and\\n\\n12 Arnold to withdraw.\\n\\n13 SourceOne’s need for a distributor to supply its online portals\\n\\n14 opened the door for IQ. In May of 2014, IQ signed a contract to\\n\\n15 distribute through SourceOne‐affiliated websites, and, since then, IQ\\n\\n16 has supplied 90% of the dental supplies sold through SourceOne’s\\n\\n17 website and its affiliated SDA websites. But IQ soon encountered the\\n\\n18 same problem that DDS and Arnold had faced: pressure from the\\n\\n19 Defendants intended to disrupt SourceOne’s online sales portals\\n\\n20 began to affect IQ’s business.\\n\\n21 IQ alleged that the Defendants engaged in this campaign to force\\n\\n22 SourceOne out of business by conspiring to organize a boycott of:\\n\\n23 (1) SourceOne and SourceOne‐affiliated SDA websites,\\n\\f 7 No. 18‐175‐cv\\n\\n 1 (2) participating SDAs and SDA trade shows, and (3) IQ directly by\\n\\n 2 pressuring the manufacturers to stop supplying IQ. It also alleged\\n\\n 3 that the Defendants engaged in a price‐fixing conspiracy, which is not\\n\\n 4 part of this appeal. These unlawful boycotts allegedly frightened off\\n\\n 5 dental manufacturers, SDAs, and dental practices from doing\\n\\n 6 business with companies connected to SourceOne, and, as a result,\\n\\n 7 ultimately dealing with IQ. These boycotts “severely limited and\\n\\n 8 inhibited IQ’s growth and sales, and has cost IQ many millions of\\n\\n 9 dollars in lost profits.” Appellant’s Br. at 13.\\n\\n10 In August 2017, IQ sued the defendants in the Eastern District of\\n\\n11 New York, under the Sherman Act, 15 U.S.C. § 1, and corresponding\\n\\n12 state antitrust laws—the Donnelly Act, N.Y. Gen. Bus. Law §§ 340 et\\n\\n13 seq., and the New Jersey Antitrust Act, N.J. Stat. Ann. §§ 56:9‐1 et seq.\\n\\n14 IQ also brought common‐law claims for tortious interference with\\n\\n15 prospective business relations, civil conspiracy, and aiding and\\n\\n16 abetting.\\n\\n17 The district court granted the Defendants’ motion to dismiss IQ’s\\n\\n18 complaint. It determined that IQ failed to establish antitrust standing\\n\\n19 because it had neither alleged an antitrust injury, nor shown that it\\n\\n20 was an efficient enforcer of the antitrust laws. The remaining state law\\n\\n21 claims were dismissed for failure to state a claim. IQ now appeals that\\n\\n22 decision.\\n\\f 8 No. 18‐175‐cv\\n\\n 1 DISCUSSION\\n\\n 2 We review the district court’s grant of a motion to dismiss de novo;\\n\\n 3 we accept as true all factual claims and draw all reasonable inferences\\n\\n 4 in IQ’s favor. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir.\\n\\n 5 2016). Questions of standing are also reviewed de novo. In re DDAVP\\n\\n 6 Direct Purchaser Antitrust Litig., 585 F.3d 677, 688 (2d Cir. 2009).\\n\\n 7 I. Antitrust Standing\\n\\n 8 To survive the pleading stage, an antitrust plaintiff must\\n\\n 9 demonstrate that it has “antitrust standing.” See Daniel v. Am. Bd. of\\n\\n10 Emergency Med., 428 F.3d 408, 436–37 (2d Cir. 2005). Only antitrust\\n\\n11 standing is at issue here. The antitrust standing requirement reflects\\n\\n12 the judgment that “‘Congress did not intend the antitrust laws to\\n\\n13 provide a remedy in damages for all injuries that might conceivably\\n\\n14 be traced to an antitrust violation.’” Id. (quoting Associated Gen.\\n\\n15 Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S.\\n\\n16 519, 534 (1983)).\\n\\n17 To satisfy antitrust standing at the pleading stage a plaintiff must\\n\\n18 plausibly allege two things: (1) “that it suffered a ‘special kind of\\n\\n19 antitrust injury,’” and (2) “that it is a suitable plaintiff to pursue the\\n\\n20 alleged antitrust violations and thus is an ‘efficient enforcer’ of the\\n\\n21 antitrust laws.” Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,\\n\\n22 76 (2d Cir. 2013) (internal quotation marks omitted) (quoting Port\\n\\f 9 No. 18‐175‐cv\\n\\n 1 Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121–22 (2d Cir.\\n\\n 2 2007)). We address both these antitrust‐standing imperatives in turn.\\n\\n 3 A. Antitrust Injury\\n\\n 4 A plaintiff raising an antitrust claim must demonstrate antitrust\\n\\n 5 injury to “‘ensure[] that the harm claimed by the plaintiff corresponds\\n\\n 6 to the rationale for finding a violation of the antitrust laws in the first\\n\\n 7 place.’” Gatt, 711 F.3d at 76 (quoting Atl. Richfield Co. v. USA Petroleum\\n\\n 8 Co., 495 U.S. 328, 342 (1990)).\\n\\n 9 Our jurisprudence culminating in Gatt Communications, Inc. v.\\n\\n10 PMC Associates, L.L.C. established a three‐part test for determining\\n\\n11 whether the plaintiff has alleged an antitrust injury: (1) the court\\n\\n12 “must ‘identify[] the practice complained of and the reasons such a\\n\\n13 practice is or might be anticompetitive,’” Id. (quoting Port Dock, 507\\n\\n14 F.3d at 122); (2) the court must “identify the ‘actual injury the plaintiff\\n\\n15 alleges’ . . . [which] requires us to look to the ways in which the\\n\\n16 plaintiff claims it is in a ‘worse position’ as a consequence of the\\n\\n17 defendant’s conduct,” id. (quoting Port Dock, 507 F.3d at 122, and\\n\\n18 Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 486 (1977));\\n\\n19 and (3) the court compares the “‘anticompetitive effect of the specific\\n\\n20 practice at issue’ to the ‘actual injury the plaintiff alleges,’” id.\\n\\n21 (quoting Port Dock, 507 F.3d at 122). IQ has adequately pleaded an\\n\\n22 antitrust injury in accordance with our decision in Gatt.\\n\\f 10 No. 18‐175‐cv\\n\\n 1 1. Gatt Step One\\n\\n 2 At the first step of the Gatt analysis, IQ need allege only that the\\n\\n 3 Defendants have engaged in unlawful anticompetitive conduct. Id.\\n\\n 4 The bar for such a showing is a low one. See Port Dock, 507 F.3d at 122.\\n\\n 5 IQ has satisfied this requirement by plausibly alleging that the\\n\\n 6 Defendants conspired to boycott the SourceOne‐affiliated websites,\\n\\n 7 the SDAs, and IQ itself, and engaged in a price‐fixing campaign.2\\n\\n 8 These allegations easily satisfy Gatt’s initial requirement that IQ\\n\\n 9 allege unlawful anticompetitive conduct by the Defendants. See\\n\\n10 Klor’s, Inc. v. Broadway‐Hale Stores, Inc., 359 U.S. 207, 212 (1959)\\n\\n11 (“Group boycotts . . . have long been held to be in the forbidden\\n\\n12 category [under the antitrust laws].”).\\n\\n13 2. Gatt Step Two\\n\\n14 The second Gatt step requires us to isolate and identify IQ’s\\n\\n15 “actual injury” or the “ways in which the plaintiff claims it is in a\\n\\n\\n\\n\\n 2 The district court dismissed IQ’s price‐fixing claims because\\n competitors cannot claim injury from supracompetitive prices. See\\n Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 582–83\\n (1986) (“Nor can respondents recover damages for any conspiracy by\\n petitioners to charge higher than competitive prices . . . . Such conduct\\n would indeed violate the Sherman Act, but it could not injure respondents:\\n as petitioners’ competitors, respondents stand to gain from any conspiracy\\n to raise the market prices . . . ” (internal citations omitted)). IQ does not\\n pursue a price‐fixing antitrust conspiracy claim on appeal.\\n\\f 11 No. 18‐175‐cv\\n\\n 1 ‘worse position’ as a consequence of the defendant’s conduct.” Gatt,\\n\\n 2 711 F.3d at 76.\\n\\n 3 The Defendants argue that IQ is in no “worse position” due to their\\n\\n 4 conduct because the demise of DDS and Arnold provided IQ with the\\n\\n 5 opportunity to do business through SourceOne. But for their alleged\\n\\n 6 anticompetitive behavior, the Defendants claim, IQ would not have\\n\\n 7 made a single sale through SourceOne’s online portals—and\\n\\n 8 therefore IQ cannot allege that it has been made any worse off than it\\n\\n 9 would have been absent the Defendants’ anticompetitive scheme.\\n\\n10 Essentially, the argument goes, every sale IQ has made through\\n\\n11 SourceOne‐affiliated websites is a “bonus” sale that IQ would not\\n\\n12 have made in an undistorted market because DDS and Arnold would\\n\\n13 still be SourceOne’s primary distributors, and IQ has not alleged that\\n\\n14 it would have partnered with SourceOne were that the case.\\n\\n15 To support this argument, the Defendants rely on cases where\\n\\n16 courts have denied antitrust standing to a competitor that benefitted\\n\\n17 from a market distorted by anticompetitive conduct, see Matsushita\\n\\n18 Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 583 (1986)\\n\\n19 (no antitrust standing for competitors who would benefit from a\\n\\n20 price‐fixing conspiracy to raise prices); Sprint Nextel Corp. v. AT&T\\n\\n21 Inc., 821 F. Supp. 2d 308, 319–20 (D.D.C. 2011) (no antitrust standing\\n\\n22 because an increase in market price did not harm competitors);\\n\\n23 MacPherson’s Inc. v. Windermere Real Estate Services Co., 100 F. App’x\\n\\f 12 No. 18‐175‐cv\\n\\n 1 651, 654 (9th Cir. 2004) (no antitrust standing because the alleged\\n\\n 2 price‐fixing scheme would increase the plaintiff’s profits), and where\\n\\n 3 courts have denied antitrust standing to a competitor that alleged it\\n\\n 4 would have experienced an increase in its profits but for the\\n\\n 5 anticompetitive conduct, Alberta Gas Chemicals Ltd. v. E.I. Du Pont de\\n\\n 6 Nemours and Co., 826 F.2d 1235, 1243 (3d Cir. 1987) (no antitrust\\n\\n 7 standing for plaintiffs denied access to “windfall profits” as a result\\n\\n 8 of antitrust conspiracy).\\n\\n 9 But the plaintiff’s position in each of these cases is distinguishable\\n\\n10 from IQ’s. In three of the cases—Matsushita, MacPherson’s, and\\n\\n11 Sprint—the would‐be antitrust plaintiffs enjoyed continuing benefits\\n\\n12 as a direct result of the antitrust violations. The plaintiffs in these\\n\\n13 cases were competitors benefiting from the supracompetitive pricing\\n\\n14 that the conspiracy had produced. Matsushita, 475 U.S. at 583;\\n\\n15 MacPherson’s, 100 F. App’x at 654; Sprint, 821 F. Supp. 2d at 319–20.\\n\\n16 IQ, however, is not receiving a continuing benefit from the\\n\\n17 Defendants’ alleged antitrust violations because the Defendants’\\n\\n18 conduct is not producing an ongoing competitive advantage for IQ.3\\n\\n\\n\\n The Defendants maintain that because their anticompetitive behavior\\n 3\\n\\n is the but‐for cause of IQ’s agreement with SourceOne, any IQ sale made\\n through SourceOne‐affiliated websites constitutes an ongoing benefit to IQ.\\n But the cases cited by the Defendants deny standing to plaintiffs who\\n experience an ongoing beneficial market condition as a result of the\\n defendants’ conduct—not a one‐time market opportunity. By contrast, the\\n\\f 13 No. 18‐175‐cv\\n\\n 1 Instead, IQ alleges that the Defendants’ actions have decreased the\\n\\n 2 number of sales it has been able to make through SourceOne‐affiliated\\n\\n 3 websites.\\n\\n 4 Alberta Gas is distinguishable for a different reason: in that case the\\n\\n 5 plaintiffs claimed antitrust losses “stemming from the failure of a\\n\\n 6 competitor to bring about an increase in demand and price.” Alberta\\n\\n 7 Gas, 826 F.2d at 1243. The Third Circuit held that a lost “windfall\\n\\n 8 profit” is not an antitrust injury. Id. But IQ does not claim an actual\\n\\n 9 injury based on the loss of windfall profits such as that disallowed in\\n\\n10 Alberta Gas. IQ’s alleged losses do not stem from the denial of profits\\n\\n11 that would have resulted from an increased demand or new market\\n\\n12 absent the Defendants’ anticompetitive conduct.\\n\\n13 We agree with IQ that its role as a “replacement supplier” for\\n\\n14 SourceOne after the demise of DDS and Arnold does not defeat its\\n\\n15 claim of actual injury under the antitrust laws. Regardless of how IQ\\n\\n16 entered the market, once IQ was in the market it had a right to do\\n\\n17 business in a market undistorted by unlawful anticompetitive\\n\\n18 conduct. See Brunswick, 429 U.S. at 489 (plaintiffs must show that their\\n\\n19 injury is “of the type the antitrust laws were intended to prevent”).\\n\\n\\n\\n\\n Defendants’ ongoing boycotts have the continuing effect of restricting the\\n number of sales IQ makes through SourceOne‐affiliated websites.\\n\\f 14 No. 18‐175‐cv\\n\\n 1 Antitrust law is concerned with market conditions. See Gelboim,\\n\\n 2 823 F.3d at 773. Assuming that IQ is operating in a market affected by\\n\\n 3 anticompetitive conduct, the question of actual injury becomes\\n\\n 4 whether IQ is worse off than it would be if the market were free of\\n\\n 5 anticompetitive forces. IQ has alleged that the Defendants’\\n\\n 6 anticompetitive conduct affected the market, and that, after it entered\\n\\n 7 the market, its sales through SourceOne suffered as a result. The\\n\\n 8 manner of IQ’s entrance into the SourceOne agreement\\n\\n 9 notwithstanding, it is entitled to conduct its business in a market that\\n\\n10 is not infected with an anticompetitive distortion. Moreover, this is\\n\\n11 the type of injury the antitrust laws were designed to prevent. We\\n\\n12 conclude that IQ has adequately alleged an actual injury.\\n\\n13 3. Gatt Step Three\\n\\n14 Finally, at Gatt’s third step IQ must demonstrate that the\\n\\n15 Defendants’ anticompetitive behavior caused its actual injury. Gatt,\\n\\n16 711 F.3d at 76. IQ has satisfied this requirement. Assuming that IQ has\\n\\n17 suffered an actual injury as we determined in step two, there is no\\n\\n18 substantial dispute that IQ has adequately alleged that the\\n\\n19 Defendants’ anticompetitive behavior caused the injury. See\\n\\n20 Brunswick, 429 U.S. at 489 (the plaintiff must show that the injury\\n\\n21 “flows from that which makes defendants’ acts unlawful”).\\n\\f 15 No. 18‐175‐cv\\n\\n 1 B. Efficient‐Enforcer Test\\n\\n 2 Even if IQ has cleared the antitrust‐injury hurdle, there is more to\\n\\n 3 the antitrust standing requirement. An antitrust plaintiff must also\\n\\n 4 show that it is an “efficient enforcer” of the antitrust laws. Daniel, 428\\n\\n 5 F.3d at 443.\\n\\n 6 A four‐factor test is employed to determine whether an antitrust\\n\\n 7 plaintiff is an efficient enforcer; thus we must evaluate: (1) “the\\n\\n 8 directness or indirectness of the asserted injury,” (2) “the existence of\\n\\n 9 an identifiable class of persons whose self‐interest would normally\\n\\n10 motivate them to vindicate the public interest in antitrust\\n\\n11 enforcement,” (3) “the speculativeness of the alleged injury,” and (4)\\n\\n12 “the difficulty of identifying damages and apportioning them among\\n\\n13 direct and indirect victims so as to avoid duplicative recoveries.” Id.\\n\\n14 (internal quotations marks and citations omitted). These four factors\\n\\n15 need not be given equal weight: the relative significance of each factor\\n\\n16 will depend on the circumstances of the particular case. Id.\\n\\n17 To determine whether IQ is an efficient enforcer of the antitrust\\n\\n18 laws, we must first distinguish the different types of antitrust\\n\\n19 violations IQ seeks to enforce. There are three types of antitrust\\n\\n20 violations at issue in this appeal: organizing boycotts of\\n\\n21 (1) SourceOne‐affiliated websites, (2) the SDAs, and (3) IQ. The first\\n\\n22 two violations allege instances of unlawful pressure placed on IQ’s\\n\\f 16 No. 18‐175‐cv\\n\\n 1 business indirectly due to a boycott of SourceOne and the SDAs (“the\\n\\n 2 indirect boycott allegations”), and the third violation alleges a direct\\n\\n 3 boycott of IQ (“the direct boycott allegations”).\\n\\n 4 1. The Indirect Boycott Allegations\\n\\n 5 Directness of the injury. The first efficient‐enforcer factor requires\\n\\n 6 a direct injury: “Directness in the antitrust context means close in the\\n\\n 7 chain of causation.” Gatt, 711 F.3d at 78 (internal citation and\\n\\n 8 quotation marks omitted); see also Paycom Billing Servs., Inc. v.\\n\\n 9 Mastercard Int’l, Inc., 467 F.3d 283, 293 (2d Cir. 2006) (finding the\\n\\n10 plaintiff’s injury too indirect when it “flowed from the injuries”\\n\\n11 suffered by other parties).\\n\\n12 As to IQ’s allegations that the Defendants engaged in an unlawful\\n\\n13 campaign to boycott the SourceOne‐affiliated websites and the SDAs\\n\\n14 themselves, the violation is too remote to satisfy this first factor. We\\n\\n15 agree with the district court that IQ’s claims with respect to these\\n\\n16 allegations are derivative and indirect: the harm to IQ resulted from\\n\\n17 injury to SourceOne and the SDAs.\\n\\n18 To be sure, the infliction of a derivative injury does not always\\n\\n19 render an antitrust plaintiff’s injury too indirect under the efficient‐\\n\\n20 enforcer test. See In re DDAVP, 585 F.3d at 688 (derivative harm is\\n\\n21 sufficiently direct when “harming competitors [is] simply a means for\\n\\n22 the defendants to charge the plaintiffs higher prices”). Thus, in In re\\n\\f 17 No. 18‐175‐cv\\n\\n 1 DDAVP, the ultimate goal of the anticompetitive scheme to harm\\n\\n 2 competitors was to charge the consumers higher prices. Id. at 682. By\\n\\n 3 contrast, the Defendants here sought to put SourceOne—not IQ—out\\n\\n 4 of business by undermining SourceOne’s new and disruptive online\\n\\n 5 sales model. IQ was not the target of annihilation; it was simply\\n\\n 6 collateral damage.4 IQ’s alleged injury is therefore too indirect.\\n\\n 7 Sufficiently motivated plaintiff. Under the second efficient‐\\n\\n 8 enforcer factor, IQ has failed to adequately allege that it is a\\n\\n 9 sufficiently motivated plaintiff such that it is part of “an identifiable\\n\\n10 class . . . whose self‐interest would normally motivate [it] to vindicate\\n\\n11 the public interest in antitrust enforcement.” Gatt, 711 F.3d at 79\\n\\n12 (quoting AGC, 459 U.S. at 542). In this case, several plaintiffs have\\n\\n13 already sued the Defendants and have alleged these same antitrust\\n\\n14 violations. See SourceOne Dental, Inc. v. Patterson Cos., Inc., et al., No.\\n\\n15 15‐cv‐05440 (BMC) (E.D.N.Y filed Sept. 21, 2015) (suit brought by\\n\\n16 SourceOne); In re Dental Supplies Antitrust Litig., No. 16‐cv‐00696\\n\\n\\n IQ argues that the district court erred by applying the “target area test.”\\n 4\\n\\n We abandoned that test over thirty years ago in Crimpers Promotions Inc. v.\\n Home Box Office, Inc., 724 F.2d 290, 292–93 (2d Cir. 1983). In any event, the\\n district court did not apply the “target area test” when it found that IQ had\\n not suffered a direct injury under the first efficient‐enforcer factor. The\\n “target area test” used to ask whether a plaintiff was within “that sector of\\n the economy which is endangered by a breakdown of competitive\\n conditions in the particular industry.” Id. at 292 (internal quotation marks\\n omitted). The district court did not ask that question. It properly asked\\n whether IQ was a “target” of the Defendants’ unlawful conspiracy in the\\n context of assessing whether that injury was sufficiently direct.\\n\\f 18 No. 18‐175‐cv\\n\\n 1 (BMC) (E.D.N.Y. filed Feb. 9, 2016) (suit brought by dental offices).\\n\\n 2 Although the existence of more‐motivated plaintiffs is not dispositive,\\n\\n 3 the presence of plaintiffs who are better situated to vindicate the\\n\\n 4 antitrust laws is relevant to this second factor. See In re DDAVP, 585\\n\\n 5 F.3d at 688–89. With respect to the challenged boycotts, SourceOne is\\n\\n 6 a better‐positioned plaintiff than IQ because SourceOne has been\\n\\n 7 more directly injured by the alleged antitrust conspiracy than IQ. And\\n\\n 8 SourceOne has in fact sued the Defendants seeking to enforce the\\n\\n 9 antitrust laws.\\n\\n10 IQ argues that it is sufficiently motivated because none of the\\n\\n11 parties that have already sued (or could sue) the Defendants stand to\\n\\n12 recover lost profits. This is IQ’s most promising claim that it is a\\n\\n13 properly motivated plaintiff: while SourceOne and the SDAs earn a\\n\\n14 commission on the sales, neither earns a profit. But this alone will not\\n\\n15 qualify IQ as a sufficiently motivated plaintiff. The antitrust laws\\n\\n16 recognize that “not every victim of an antitrust violation needs to be\\n\\n17 compensated under the antitrust laws in order for the antitrust laws\\n\\n18 to be efficiently enforced.” Gelboim, 823 F.3d at 779. IQ’s (highly\\n\\n19 speculative, as discussed below) lost profits do not tip the scales.\\n\\n20 In short, “[t]he justification for permitting [IQ] ‘to perform the\\n\\n21 office of a private attorney general’ is greatly diminished because\\n\\n22 ‘[d]enying [IQ] a remedy on the basis of its allegations in this case is\\n\\n23 not likely to leave a significant antitrust violation undetected or\\n\\f 19 No. 18‐175‐cv\\n\\n 1 unremedied.’” Paycom, 467 F.3d at 294 (quoting AGC, 459 U.S. at 542).\\n\\n 2 Given that IQ is further removed from the harm caused by the\\n\\n 3 Defendants than the parties directly affected by the boycott that have\\n\\n 4 already sued the Defendants, the second efficient‐enforcer factor\\n\\n 5 weighs against IQ’s antitrust standing.\\n\\n 6 Speculative Damages. Under the third efficient‐enforcer factor we\\n\\n 7 must consider whether IQ’s “asserted damages are speculative.” Gatt,\\n\\n 8 711 F.3d at 76. Although “some degree of uncertainty stems from the\\n\\n 9 nature of antitrust law,” a high degree of speculation in a damages\\n\\n10 calculation suggests that “a given plaintiff is an inefficient engine of\\n\\n11 enforcement.” Gelboim, 823 F.3d at 779.\\n\\n12 The derivative nature of IQ’s alleged injuries renders its potential\\n\\n13 recovery highly speculative. As the district court correctly\\n\\n14 ascertained, calculating IQ’s damages essentially would require the\\n\\n15 creation of an “alternative universe.” IQ Dental Supply, Inc. v. Henry\\n\\n16 Schein, Inc., No. 17‐cv‐4834, 2017 WL 6557482, at *10 (E.D.N.Y. Dec.\\n\\n17 21, 2017). IQ would have to model far more than basic lost sales and\\n\\n18 lost profits. It would need to first show how many additional SDAs\\n\\n19 would have partnered with SourceOne but for the Defendants’\\n\\n20 conduct, second demonstrate the types of agreements SourceOne and\\n\\n21 IQ would have had with each of those SDAs, and finally show how\\n\\n22 many SDA customers would have purchased IQ‐supplied products\\n\\n23 through a SourceOne‐affiliated website. Thus, IQ’s damages\\n\\f 20 No. 18‐175‐cv\\n\\n 1 calculation rests on multiple layers of speculation. See id. (“Any\\n\\n 2 damages estimate would require evidence to ‘support a just and\\n\\n 3 reasonable estimate of damages,’ and it is difficult to see how\\n\\n 4 appellants would arrive at such an estimate, even with the aid of\\n\\n 5 expert testimony.” (internal quotation marks omitted) (quoting U.S.\\n\\n 6 Football League v. Nat’l Football League, 842 F.2d 1335, 1378 (2d Cir.\\n\\n 7 1988))). No amount of expert testimony can adequately ameliorate the\\n\\n 8 highly speculative nature of IQ’s alleged losses.\\n\\n 9 Duplicative and difficult to apportion damages. The fourth factor,\\n\\n10 duplicative recovery, also cuts against IQ. The damages to which IQ\\n\\n11 lays claim—lost profits from sales it would have made through\\n\\n12 SourceOne‐affiliated websites absent the Defendants’ anticompetitive\\n\\n13 conduct—are exactly the same damages SourceOne’s initial suppliers,\\n\\n14 DDS and Arnold, could have claimed.\\n\\n15 IQ argues that the potential for duplicative recovery has become\\n\\n16 irrelevant to the efficient‐enforcer analysis because any antitrust\\n\\n17 claims DDS and Arnold might have against the Defendants are now\\n\\n18 time‐barred. But we reiterate that the efficient‐enforcer factors are\\n\\n19 concerned with finding the plaintiffs best suited to serve as “private\\n\\n20 attorney[s] general,” AGC, 459 U.S. at 542, and not with identifying\\n\\n21 every plaintiff who might sue. Whether external or practical\\n\\n22 considerations (such as the statute of limitations) may eliminate a\\n\\n23 duplicative damages concern, therefore, is not substantially material.\\n\\f 21 No. 18‐175‐cv\\n\\n 1 The efficient‐enforcer factor asks, in the overall scheme of antitrust\\n\\n 2 enforcement, whether a potential antitrust plaintiff stands within that\\n\\n 3 scheme as someone well positioned to enforce the antitrust laws. The\\n\\n 4 existence of other plaintiffs who could lay claim to precisely the same\\n\\n 5 damages, whether in theory or in actuality, indicates that the would‐\\n\\n 6 be antitrust plaintiff might not be well positioned to vindicate the\\n\\n 7 antitrust laws for the benefit of the public. See id. Indeed, it would be\\n\\n 8 strange and unworkable if new efficient enforcers sprang up simply\\n\\n 9 by operation of the statute of limitations on the other enforcers.\\n\\n10 In sum, we agree with the district court that because IQ is not\\n\\n11 positioned to efficiently enforce the claims that the Defendants\\n\\n12 harmed it by conspiring to boycott SourceOne‐affiliated websites and\\n\\n13 the SDAs, IQ does not have antitrust standing to bring these claims.\\n\\n14 2. The Direct Boycott Allegations\\n\\n15 IQ also alleges that the Defendants injured it by means of a direct\\n\\n16 boycott. IQ claims that the Defendants pressured the manufacturers\\n\\n17 to stop supplying IQ, frightened manufacturers away from supplying\\n\\n18 IQ in the first place, and otherwise disparaged IQ’s business to its\\n\\n19 customers and potential customers.\\n\\n20 We find, with respect to these particular allegations, that IQ is an\\n\\n21 efficient enforcer and thus has antitrust standing to proceed with its\\n\\n22 direct boycott claim against the Defendants.\\n\\f 22 No. 18‐175‐cv\\n\\n 1 Directness of the injury. The direct boycott injury IQ alleges is\\n\\n 2 neither indirect nor derivative. IQ claims that the Defendants directly\\n\\n 3 pressured manufacturers to stop selling their products to IQ, and that\\n\\n 4 the Defendants sought to damage IQ’s business reputation with its\\n\\n 5 customers. Because IQ was the Defendants’ target, these are direct\\n\\n 6 injuries.\\n\\n 7 Sufficiently motivated plaintiff. Second, IQ is the most‐motivated\\n\\n 8 plaintiff with respect to the Defendants’ alleged direct boycott of IQ.\\n\\n 9 See Gatt, 711 F.3d at 78. Unlike the claims of injury from the indirect\\n\\n10 pressure on SourceOne and the SDAs, IQ is the “immediate victim[]”\\n\\n11 of any direct boycott of IQ. AGC, 459 U.S. at 541. It has suffered a\\n\\n12 direct loss of sales. By contrast, none of the plaintiffs best positioned\\n\\n13 to enforce IQ’s claims of indirect boycott are well positioned to\\n\\n14 enforce IQ’s allegations of direct boycott.\\n\\n15 Speculative damages. The damages that flow from the\\n\\n16 Defendants’ alleged direct boycott of IQ would not necessarily be\\n\\n17 speculative—such damages would relate to instances of potentially\\n\\n18 ascertainable business losses. The value of each lost opportunity\\n\\n19 might be calculated based on IQ’s historical sales data without undue\\n\\n20 speculation.\\n\\n21 Duplicative recovery. IQ’s recovery of damages related to the\\n\\n22 direct boycott of IQ would not be duplicative. See Gatt, 711 F.3d at 79–\\n\\f 23 No. 18‐175‐cv\\n\\n 1 80. Unlike the indirect claims, any damages in connection with the\\n\\n 2 Defendants’ direct boycott of IQ could not also be claimed by Arnold\\n\\n 3 and DDS. These injuries are specific to IQ alone.\\n\\n 4 The Defendants argue that IQ fails to state plausible claims for\\n\\n 5 relief for direct injury because “the complaint does not contain factual\\n\\n 6 allegations that Defendants engaged in any joint conduct to boycott\\n\\n 7 IQ.” Appellees’ Br. at 55. This argument fails to recognize that the\\n\\n 8 allegations of direct boycott are part of the Defendants’ vast and\\n\\n 9 multipronged attack on SourceOne’s platforms, the SDAs, the\\n\\n10 distributors, and dental offices. In other words, IQ has not alleged that\\n\\n11 it has suffered an antitrust injury from the Defendants’ direct boycott\\n\\n12 in isolation. Although, as the Defendants note, “complaints about\\n\\n13 price‐cutters are natural—and from the manufacturer’s perspective,\\n\\n14 unavoidable—reactions by distributors to the activities of their\\n\\n15 rivals,” Monsanto Co. v. Spray‐Rite Serv. Corp., 465 U.S. 752, 763 (1984)\\n\\n16 (internal citation and quotation marks omitted), IQ’s complaint here\\n\\n17 is not limited to price cutting. IQ has alleged that the Defendants, as\\n\\n18 part of their elaborate and extensive scheme to force SourceOne and\\n\\n19 associated entities out of business, exerted pressure on some of IQ’s\\n\\n20 suppliers to boycott IQ.\\n\\n21 ***\\n\\f 24 No. 18‐175‐cv\\n\\n 1 In sum, IQ is an efficient enforcer of the antitrust laws solely with\\n\\n 2 respect to IQ’s allegations that it has been directly boycotted by the\\n\\n 3 actions of the Defendants. As to these allegations, we vacate the\\n\\n 4 district court’s judgment and remand for further proceedings on IQ’s\\n\\n 5 claim.\\n\\n 6 II. IQ’S STATE LAW CLAIMS\\n\\n 7 A. New York and New Jersey Antitrust Claims\\n\\n 8 IQ brought parallel antitrust claims under New York’s Donnelly\\n\\n 9 Act, N.Y. Gen. Bus. Law § 340 et seq., and the New Jersey Antitrust\\n\\n10 Act, N.J. Stat. Ann. §§ 56:9‐1 et seq. We decide questions of antitrust\\n\\n11 standing under both New York and New Jersey antitrust law in\\n\\n12 conformity with federal antitrust law. Gatt, 711 F.3d at 81–82 (holding\\n\\n13 that the Donnelly Act should generally be interpreted consistently\\n\\n14 with federal antitrust law (citing X.L.O. Concrete Corp. v. Rivergate\\n\\n15 Corp., 634 N.E.2d 158, 161 (N.Y. 1994))); see also State v. Lawn King, Inc.,\\n\\n16 417 A.2d 1025, 1032 (N.J. 1980) (“[T]he New Jersey act is to be\\n\\n17 construed in harmony with ruling judicial interpretations of\\n\\n18 comparable Federal antitrust statutes and to effectuate, insofar as\\n\\n19 practicable, a uniformity in the laws of those states which enact it.”\\n\\n20 (internal quotation marks omitted)).\\n\\n21 Therefore, our holding with respect to IQ’s state law antitrust\\n\\n22 claims mirrors our federal antitrust holding discussed above. IQ’s\\n\\f 25 No. 18‐175‐cv\\n\\n 1 indirect allegations—the boycott of SourceOne and the SDAs—fail\\n\\n 2 because IQ is not an efficient enforcer. IQ’s state‐law antitrust claims\\n\\n 3 that the Defendants directly boycotted IQ’s business, however, may\\n\\n 4 proceed.\\n\\n 5 B. IQ’s State Law Tort Claims\\n\\n 6 Our final task is to determine the fate of IQ’s remaining state law\\n\\n 7 claims. IQ asserted common‐law claims of tortious interference with\\n\\n 8 prospective business relations, civil conspiracy, and aiding and\\n\\n 9 abetting.\\n\\n10 1. Tortious Interference with Prospective Business\\n11 Relations\\n12 Under New York law, a plaintiff claiming tortious interference\\n\\n13 with prospective business relations must “show the defendant’s\\n\\n14 interference with business relations existing between the plaintiff and\\n\\n15 a third party, either with the sole purpose of harming the plaintiff or\\n\\n16 by means that are dishonest, unfair, or in any other way improper.”\\n\\n17 PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.\\n\\n18 1987) (internal citation and quotation marks omitted), abrogated on\\n\\n19 other grounds by Hannex Corp. v. GMI, Inc., 140 F.3d 194, 206 n.9 (2d\\n\\n20 Cir. 1998). But where, as it does here, “the defendant’s interference is\\n\\n21 intended, at least in part, to advance its own competing interests, the\\n\\n22 claim will fail unless the means employed include criminal or\\n\\n23 fraudulent conduct.” Id.\\n\\f 26 No. 18‐175‐cv\\n\\n 1 The district court dismissed IQ’s tortious interference claim\\n\\n 2 because IQ failed to allege a “viable antitrust claim” and therefore\\n\\n 3 could not plausibly allege that it had suffered criminal or tortious\\n\\n 4 behavior. Second, the district court determined, consistent with the\\n\\n 5 efficient‐enforcer analysis, that IQ had not plausibly alleged that the\\n\\n 6 Defendants’ conduct was the proximate cause of its injuries because\\n\\n 7 IQ had suffered only indirect harm. Finally, with respect to IQ’s\\n\\n 8 allegations that the Defendants directly boycotted its business, the\\n\\n 9 district court found them too “threadbare” to sustain a tortious\\n\\n10 interference claim.\\n\\n11 We agree with the district court that IQ’s claims of tortious\\n\\n12 interference with respect to IQ’s allegations of indirect pressure by the\\n\\n13 Defendants (the boycott of SourceOne and the SDAs) should be\\n\\n14 dismissed because IQ failed to plausibly allege the underlying\\n\\n15 criminal or tortious conduct on which the tortious interference claim\\n\\n16 must be based.\\n\\n17 We disagree with the district court, however, that IQ’s claims of\\n\\n18 direct tortious interference are too scant to survive a motion to\\n\\n19 dismiss. As discussed above, IQ has plausibly alleged that it suffered\\n\\n20 an antitrust injury resulting from the Defendants causing a direct\\n\\n21 boycott of its business. Accordingly, this allegation is sufficient to\\n\\n22 allow IQ’s tortious interference claim to proceed. Therefore, to the\\n\\n23 extent that the district court’s dismissal of IQ’s tortious interference\\n\\f 27 No. 18‐175‐cv\\n\\n 1 claim rested on a misapprehension of the distinction between IQ’s\\n\\n 2 claims of indirect and direct pressure on its business by the\\n\\n 3 Defendants, the judgment of the district court is vacated and\\n\\n 4 remanded to allow the tortious interference claims premised on the\\n\\n 5 direct boycott of IQ to proceed.\\n\\n 6 2. Civil Conspiracy and Aiding and Abetting\\n\\n 7 IQ also asserted claims for state civil conspiracy and aiding and\\n\\n 8 abetting.5 Because IQ’s civil conspiracy and aiding and abetting\\n\\n 9 claims were derivative of its tortious interference claim, the district\\n\\n10 court dismissed these claims as tag‐along claims. Consistent with our\\n\\n11 analysis above, we vacate in part the judgment of the district court as\\n\\n12 to these claims with respect to IQ’s direct boycott allegations.\\n\\n13 ***\\n\\n14 To recap, we conclude that while IQ has alleged an antitrust injury,\\n\\n15 it is not an efficient enforcer with respect to its allegations that the\\n\\n16 Defendants unlawfully caused the boycotts of SourceOne and the\\n\\n17 SDAs. We therefore affirm the judgment of the district court\\n\\n18 dismissing those claims. With respect to IQ’s allegations that the\\n\\n\\n\\n We express no opinion at this stage as to the district court’s finding that\\n 5\\n\\n the existence of an independent tort of civil conspiracy in New Jersey did\\n not raise a question of conflict of laws. IQ has properly pleaded a tortious\\n interference claim from which its claim for civil conspiracy (under the law\\n of either jurisdiction) can be derived.\\n\\f 28 No. 18‐175‐cv\\n\\n 1 Defendants directly brought about a boycott of IQ, however, we find\\n\\n 2 that IQ is best positioned to enforce those antitrust violations.\\n\\n 3 Accordingly, we vacate the judgment and remand the case to the\\n\\n 4 district court on IQ’s allegations of direct boycott only. IQ’s state law\\n\\n 5 antitrust claims and common law tort claims are also vacated and\\n\\n 6 remanded, but only to the extent that they rely on IQ’s allegations that\\n\\n 7 it suffered harm as a result of the direct boycott.\\n\\n 8 CONCLUSION\\n\\n 9 The judgment of the district court is AFFIRMED in part and\\n\\n10 VACATED in part. We REMAND this case to the district court for\\n\\n11 further proceedings consistent with this opinion.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4395832/\", \"author_raw\": \"No. 17-cv-4834 - Brian M. Cogan, Judge\"}]}"},"judge1":{"kind":"string","value":"WALKER"},"judge2":{"kind":"string","value":"JACOBS"},"judge3":{"kind":"string","value":"POOLER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4618579/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: IQ DENTAL SUPPLY, INC., Plaintiff-Appellant, v. HENRY SCHEIN, INC., Patterson Companies, Inc., Benco Dental Supply Company, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐175‐cv\n IQ Dental Supply, Inc. v. Henry Schein, Inc.\n\n 1\n\n 2 In the\n 3 United States Court of Appeals\n 4 For the Second Circuit\n 5 ________\n 6\n 7 AUGUST TERM, 2018\n 8\n 9 ARGUED: SEPTEMBER 13, 2018\n10 DECIDED: MAY 10, 2019\n11\n12 No. 18‐175‐cv\n13\n14 IQ DENTAL SUPPLY, INC.,\n15 Plaintiff‐Appellant,\n16\n17 v.\n18\n19 HENRY SCHEIN, INC., PATTERSON COMPANIES, INC., BENCO DENTAL\n20 SUPPLY COMPANY,\n21 Defendants‐Appellees.\n22 ________\n23\n24 Appeal from the United States District Court\n25 for the Eastern District of New York.\n26 No. 17‐cv‐4834 – Brian M. Cogan, Judge.\n27 ________\n28\n29 Before: WALKER, JACOBS, and POOLER, Circuit Judges.\n30 ________\n31\n32 This case involves allegations that three large dental‐supply\n\n33 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\n\f 2 No. 18‐175‐cv\n\n 1 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\n\n 2 to violate the antitrust laws by engineering the boycott of an online\n\n 3 distribution portal, SourceOne, Inc. (“SourceOne”), and dental\n\n 4 manufacturers and suppliers associated with SourceOne. The\n\n 5 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\n\n 6 distributor that sold dental products through SourceOne’s online\n\n 7 portals. IQ sued the Defendants in the United States District Court for\n\n 8 the Eastern District of New York alleging violations of federal and\n\n 9 state antitrust laws and asserting common law tort claims. The district\n\n10 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\n\n11 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\n\n12 appeals that decision.\n\n13 We affirm the district court’s dismissal of IQ’s claim that it has\n\n14 antitrust standing to challenge the boycott of SourceOne and the state\n\n15 dental associations (“SDAs”) that had partnered with SourceOne. As\n\n16 to IQ’s claim that it has standing to challenge injury inflicted by the\n\n17 direct boycott of its business, however, we find that IQ’s antitrust and\n\n18 tort claims may go forward on these direct boycott allegations only.\n\n19 Accordingly, we vacate in part the judgment of the district court and\n\n20 remand the case for further proceedings consistent with this opinion.\n\n21 ________\n22\n23 LAWRENCE FOX, Duane Morris LLP, New York, NY\n24 (William B. Pollard, Amy C. Gross, Duane Morris\n\f 3 No. 18‐175‐cv\n\n 1 LLP, New York, NY; J. Manly Parks, Robert M.\n 2 Palumbos, Duane Morris LLP, Philadelphia, PA,\n 3 on the brief), for Plaintiff‐Appellant.\n\n 4 RICHARD C. GODFREY, Kirkland & Ellis LLP,\n 5 Chicago, IL (Barack S. Echols, Kirkland & Ellis\n 6 LLP, Chicago, IL; Colin R. Kass, Adrian Fontecilla,\n 7 Proskauer Rose LLP, Washington, DC; Bradley I.\n 8 Ruskin, Proskauer Rose LLP, New York, NY, on the\n 9 brief), for Defendant‐Appellee Henry Schein, Inc.\n\n10 James J. Long, Scott M. Flaherty, Briggs and\n11 Morgan, P.A., Minneapolis, MN, for Defendant‐\n12 Appellee Patterson Companies, Inc.\n\n13 Howard D. Scher, Thomas P. Manning, Samantha\n14 L. Southall, Buchanan Ingersoll & Rooney PC,\n15 Philadelphia, PA, for Defendant‐Appellee Benco\n16 Dental Supply Company.\n\n17 ________\n18\n19 JOHN M. WALKER, JR., Circuit Judge.\n\n20 This case involves allegations that three large dental‐supply\n\n21 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\n\n22 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\n\n23 to violate the antitrust laws by engineering the boycott of an online\n\n24 distribution portal, SourceOne, Inc. (“SourceOne”), and of dental\n\n25 manufacturers and suppliers associated with SourceOne. The\n\n26 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\n\n27 distributor that sold dental products through SourceOne’s online\n\n28 portals. IQ sued the Defendants in the United States District Court for\n\f 4 No. 18‐175‐cv\n\n 1 the Eastern District of New York alleging violations of federal and\n\n 2 state antitrust laws and asserting common law tort claims. The district\n\n 3 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\n\n 4 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\n\n 5 appeals that decision.\n\n 6 We affirm the district court’s dismissal of IQ’s claim that it has\n\n 7 antitrust standing to challenge the boycott of SourceOne and the state\n\n 8 dental associations (“SDAs”) that had partnered with SourceOne. As\n\n 9 to IQ’s claim that it has standing to challenge injury inflicted by the\n\n10 direct boycott of its business, however, we find that IQ’s antitrust and\n\n11 tort claims may go forward on these direct boycott allegations only.\n\n12 Accordingly, we vacate in part the judgment of the district court and\n\n13 remand the case for further proceedings consistent with this opinion.\n\n14 BACKGROUND\n\n15 There are only a small number of dental‐supply companies that\n\n16 distribute products to dental practices. Three of those companies, the\n\n17 Defendants, occupy approximately 80% of the dental‐supply\n\n18 distribution market.1 They purchase dental supplies and equipment\n\n19 from different manufacturers, and then sell the products to dental\n\n20 practices nationwide. This one‐stop‐shop model obviates the need for\n\n 1As we must at this stage, we take all of IQ’s well‐pleaded facts as true.\n See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).\n\f 5 No. 18‐175‐cv\n\n 1 dental practices to purchase their dental equipment from each\n\n 2 manufacturer.\n\n 3 IQ is also a distributor of dental supplies, albeit one with\n\n 4 considerably less market share than any of the Defendants. IQ entered\n\n 5 the market in 2009. Beginning in 2014, IQ adopted a new distribution\n\n 6 model. Instead of distributing dental supplies through the traditional\n\n 7 method of deploying on‐the‐ground sales teams around the country\n\n 8 (the model used by the Defendants) IQ distributed dental supplies\n\n 9 through an online portal hosted by SourceOne.\n\n10 SourceOne’s online portal is a website where dental practices can\n\n11 purchase their supplies. SourceOne itself does not sell any dental\n\n12 supplies through the website but serves as the platform through\n\n13 which dental‐supply distributors, such as IQ, sell products to dental\n\n14 offices. The distributors that used SourceOne’s portals pay SourceOne\n\n15 a commission for each sale made through the website. In 2013,\n\n16 SourceOne launched additional distribution websites in partnership\n\n17 with the SDAs in Texas, Arizona, and Nevada. These SDA‐specific\n\n18 sites operated much like SourceOne’s own portal, but each SDA had\n\n19 its own unique domain name. SourceOne remitted a portion of their\n\n20 commission to the SDA for each sale made through an SDA‐specific\n\n21 website.\n\f 6 No. 18‐175‐cv\n\n 1 IQ was not SourceOne’s first distribution partner. Two other\n\n 2 distributors—DDS Dental Supply and Arnold Dental Supply (“DDS\n\n 3 and Arnold”)—distributed products through SourceOne before IQ\n\n 4 reached its agreement with SourceOne. But sometime around April\n\n 5 2014 both DDS and Arnold stopped selling through SourceOne\n\n 6 because the Defendants pressured dental‐supply manufacturers to\n\n 7 stop supplying DDS and Arnold due to their arrangement with\n\n 8 SourceOne. After losing DDS and Arnold as distribution partners,\n\n 9 SourceOne tried to enlist a third distributor to supply dental\n\n10 products, but that distributor declined, allegedly because of the same\n\n11 anticompetitive behavior by the Defendants that had caused DDS and\n\n12 Arnold to withdraw.\n\n13 SourceOne’s need for a distributor to supply its online portals\n\n14 opened the door for IQ. In May of 2014, IQ signed a contract to\n\n15 distribute through SourceOne‐affiliated websites, and, since then, IQ\n\n16 has supplied 90% of the dental supplies sold through SourceOne’s\n\n17 website and its affiliated SDA websites. But IQ soon encountered the\n\n18 same problem that DDS and Arnold had faced: pressure from the\n\n19 Defendants intended to disrupt SourceOne’s online sales portals\n\n20 began to affect IQ’s business.\n\n21 IQ alleged that the Defendants engaged in this campaign to force\n\n22 SourceOne out of business by conspiring to organize a boycott of:\n\n23 (1) SourceOne and SourceOne‐affiliated SDA websites,\n\f 7 No. 18‐175‐cv\n\n 1 (2) participating SDAs and SDA trade shows, and (3) IQ directly by\n\n 2 pressuring the manufacturers to stop supplying IQ. It also alleged\n\n 3 that the Defendants engaged in a price‐fixing conspiracy, which is not\n\n 4 part of this appeal. These unlawful boycotts allegedly frightened off\n\n 5 dental manufacturers, SDAs, and dental practices from doing\n\n 6 business with companies connected to SourceOne, and, as a result,\n\n 7 ultimately dealing with IQ. These boycotts “severely limited and\n\n 8 inhibited IQ’s growth and sales, and has cost IQ many millions of\n\n 9 dollars in lost profits.” Appellant’s Br. at 13.\n\n10 In August 2017, IQ sued the defendants in the Eastern District of\n\n11 New York, under the Sherman Act, 15 U.S.C. § 1, and corresponding\n\n12 state antitrust laws—the Donnelly Act, N.Y. Gen. Bus. Law §§ 340 et\n\n13 seq., and the New Jersey Antitrust Act, N.J. Stat. Ann. §§ 56:9‐1 et seq.\n\n14 IQ also brought common‐law claims for tortious interference with\n\n15 prospective business relations, civil conspiracy, and aiding and\n\n16 abetting.\n\n17 The district court granted the Defendants’ motion to dismiss IQ’s\n\n18 complaint. It determined that IQ failed to establish antitrust standing\n\n19 because it had neither alleged an antitrust injury, nor shown that it\n\n20 was an efficient enforcer of the antitrust laws. The remaining state law\n\n21 claims were dismissed for failure to state a claim. IQ now appeals that\n\n22 decision.\n\f 8 No. 18‐175‐cv\n\n 1 DISCUSSION\n\n 2 We review the district court’s grant of a motion to dismiss de novo;\n\n 3 we accept as true all factual claims and draw all reasonable inferences\n\n 4 in IQ’s favor. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir.\n\n 5 2016). Questions of standing are also reviewed de novo. In re DDAVP\n\n 6 Direct Purchaser Antitrust Litig., 585 F.3d 677, 688 (2d Cir. 2009).\n\n 7 I. Antitrust Standing\n\n 8 To survive the pleading stage, an antitrust plaintiff must\n\n 9 demonstrate that it has “antitrust standing.” See Daniel v. Am. Bd. of\n\n10 Emergency Med., 428 F.3d 408, 436–37 (2d Cir. 2005). Only antitrust\n\n11 standing is at issue here. The antitrust standing requirement reflects\n\n12 the judgment that “‘Congress did not intend the antitrust laws to\n\n13 provide a remedy in damages for all injuries that might conceivably\n\n14 be traced to an antitrust violation.’” Id. (quoting Associated Gen.\n\n15 Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S.\n\n16 519, 534 (1983)).\n\n17 To satisfy antitrust standing at the pleading stage a plaintiff must\n\n18 plausibly allege two things: (1) “that it suffered a ‘special kind of\n\n19 antitrust injury,’” and (2) “that it is a suitable plaintiff to pursue the\n\n20 alleged antitrust violations and thus is an ‘efficient enforcer’ of the\n\n21 antitrust laws.” Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,\n\n22 76 (2d Cir. 2013) (internal quotation marks omitted) (quoting Port\n\f 9 No. 18‐175‐cv\n\n 1 Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121–22 (2d Cir.\n\n 2 2007)). We address both these antitrust‐standing imperatives in turn.\n\n 3 A. Antitrust Injury\n\n 4 A plaintiff raising an antitrust claim must demonstrate antitrust\n\n 5 injury to “‘ensure[] that the harm claimed by the plaintiff corresponds\n\n 6 to the rationale for finding a violation of the antitrust laws in the first\n\n 7 place.’” Gatt, 711 F.3d at 76 (quoting Atl. Richfield Co. v. USA Petroleum\n\n 8 Co., 495 U.S. 328, 342 (1990)).\n\n 9 Our jurisprudence culminating in Gatt Communications, Inc. v.\n\n10 PMC Associates, L.L.C. established a three‐part test for determining\n\n11 whether the plaintiff has alleged an antitrust injury: (1) the court\n\n12 “must ‘identify[] the practice complained of and the reasons such a\n\n13 practice is or might be anticompetitive,’” Id. (quoting Port Dock, 507\n\n14 F.3d at 122); (2) the court must “identify the ‘actual injury the plaintiff\n\n15 alleges’ . . . [which] requires us to look to the ways in which the\n\n16 plaintiff claims it is in a ‘worse position’ as a consequence of the\n\n17 defendant’s conduct,” id. (quoting Port Dock, 507 F.3d at 122, and\n\n18 Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 486 (1977));\n\n19 and (3) the court compares the “‘anticompetitive effect of the specific\n\n20 practice at issue’ to the ‘actual injury the plaintiff alleges,’” id.\n\n21 (quoting Port Dock, 507 F.3d at 122). IQ has adequately pleaded an\n\n22 antitrust injury in accordance with our decision in Gatt.\n\f 10 No. 18‐175‐cv\n\n 1 1. Gatt Step One\n\n 2 At the first step of the Gatt analysis, IQ need allege only that the\n\n 3 Defendants have engaged in unlawful anticompetitive conduct. Id.\n\n 4 The bar for such a showing is a low one. See Port Dock, 507 F.3d at 122.\n\n 5 IQ has satisfied this requirement by plausibly alleging that the\n\n 6 Defendants conspired to boycott the SourceOne‐affiliated websites,\n\n 7 the SDAs, and IQ itself, and engaged in a price‐fixing campaign.2\n\n 8 These allegations easily satisfy Gatt’s initial requirement that IQ\n\n 9 allege unlawful anticompetitive conduct by the Defendants. See\n\n10 Klor’s, Inc. v. Broadway‐Hale Stores, Inc., 359 U.S. 207, 212 (1959)\n\n11 (“Group boycotts . . . have long been held to be in the forbidden\n\n12 category [under the antitrust laws].”).\n\n13 2. Gatt Step Two\n\n14 The second Gatt step requires us to isolate and identify IQ’s\n\n15 “actual injury” or the “ways in which the plaintiff claims it is in a\n\n\n\n\n 2 The district court dismissed IQ’s price‐fixing claims because\n competitors cannot claim injury from supracompetitive prices. See\n Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 582–83\n (1986) (“Nor can respondents recover damages for any conspiracy by\n petitioners to charge higher than competitive prices . . . . Such conduct\n would indeed violate the Sherman Act, but it could not injure respondents:\n as petitioners’ competitors, respondents stand to gain from any conspiracy\n to raise the market prices . . . ” (internal citations omitted)). IQ does not\n pursue a price‐fixing antitrust conspiracy claim on appeal.\n\f 11 No. 18‐175‐cv\n\n 1 ‘worse position’ as a consequence of the defendant’s conduct.” Gatt,\n\n 2 711 F.3d at 76.\n\n 3 The Defendants argue that IQ is in no “worse position” due to their\n\n 4 conduct because the demise of DDS and Arnold provided IQ with the\n\n 5 opportunity to do business through SourceOne. But for their alleged\n\n 6 anticompetitive behavior, the Defendants claim, IQ would not have\n\n 7 made a single sale through SourceOne’s online portals—and\n\n 8 therefore IQ cannot allege that it has been made any worse off than it\n\n 9 would have been absent the Defendants’ anticompetitive scheme.\n\n10 Essentially, the argument goes, every sale IQ has made through\n\n11 SourceOne‐affiliated websites is a “bonus” sale that IQ would not\n\n12 have made in an undistorted market because DDS and Arnold would\n\n13 still be SourceOne’s primary distributors, and IQ has not alleged that\n\n14 it would have partnered with SourceOne were that the case.\n\n15 To support this argument, the Defendants rely on cases where\n\n16 courts have denied antitrust standing to a competitor that benefitted\n\n17 from a market distorted by anticompetitive conduct, see Matsushita\n\n18 Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 583 (1986)\n\n19 (no antitrust standing for competitors who would benefit from a\n\n20 price‐fixing conspiracy to raise prices); Sprint Nextel Corp. v. AT&T\n\n21 Inc., 821 F. Supp. 2d 308, 319–20 (D.D.C. 2011) (no antitrust standing\n\n22 because an increase in market price did not harm competitors);\n\n23 MacPherson’s Inc. v. Windermere Real Estate Services Co., 100 F. App’x\n\f 12 No. 18‐175‐cv\n\n 1 651, 654 (9th Cir. 2004) (no antitrust standing because the alleged\n\n 2 price‐fixing scheme would increase the plaintiff’s profits), and where\n\n 3 courts have denied antitrust standing to a competitor that alleged it\n\n 4 would have experienced an increase in its profits but for the\n\n 5 anticompetitive conduct, Alberta Gas Chemicals Ltd. v. E.I. Du Pont de\n\n 6 Nemours and Co., 826 F.2d 1235, 1243 (3d Cir. 1987) (no antitrust\n\n 7 standing for plaintiffs denied access to “windfall profits” as a result\n\n 8 of antitrust conspiracy).\n\n 9 But the plaintiff’s position in each of these cases is distinguishable\n\n10 from IQ’s. In three of the cases—Matsushita, MacPherson’s, and\n\n11 Sprint—the would‐be antitrust plaintiffs enjoyed continuing benefits\n\n12 as a direct result of the antitrust violations. The plaintiffs in these\n\n13 cases were competitors benefiting from the supracompetitive pricing\n\n14 that the conspiracy had produced. Matsushita, 475 U.S. at 583;\n\n15 MacPherson’s, 100 F. App’x at 654; Sprint, 821 F. Supp. 2d at 319–20.\n\n16 IQ, however, is not receiving a continuing benefit from the\n\n17 Defendants’ alleged antitrust violations because the Defendants’\n\n18 conduct is not producing an ongoing competitive advantage for IQ.3\n\n\n\n The Defendants maintain that because their anticompetitive behavior\n 3\n\n is the but‐for cause of IQ’s agreement with SourceOne, any IQ sale made\n through SourceOne‐affiliated websites constitutes an ongoing benefit to IQ.\n But the cases cited by the Defendants deny standing to plaintiffs who\n experience an ongoing beneficial market condition as a result of the\n defendants’ conduct—not a one‐time market opportunity. By contrast, the\n\f 13 No. 18‐175‐cv\n\n 1 Instead, IQ alleges that the Defendants’ actions have decreased the\n\n 2 number of sales it has been able to make through SourceOne‐affiliated\n\n 3 websites.\n\n 4 Alberta Gas is distinguishable for a different reason: in that case the\n\n 5 plaintiffs claimed antitrust losses “stemming from the failure of a\n\n 6 competitor to bring about an increase in demand and price.” Alberta\n\n 7 Gas, 826 F.2d at 1243. The Third Circuit held that a lost “windfall\n\n 8 profit” is not an antitrust injury. Id. But IQ does not claim an actual\n\n 9 injury based on the loss of windfall profits such as that disallowed in\n\n10 Alberta Gas. IQ’s alleged losses do not stem from the denial of profits\n\n11 that would have resulted from an increased demand or new market\n\n12 absent the Defendants’ anticompetitive conduct.\n\n13 We agree with IQ that its role as a “replacement supplier” for\n\n14 SourceOne after the demise of DDS and Arnold does not defeat its\n\n15 claim of actual injury under the antitrust laws. Regardless of how IQ\n\n16 entered the market, once IQ was in the market it had a right to do\n\n17 business in a market undistorted by unlawful anticompetitive\n\n18 conduct. See Brunswick, 429 U.S. at 489 (plaintiffs must show that their\n\n19 injury is “of the type the antitrust laws were intended to prevent”).\n\n\n\n\n Defendants’ ongoing boycotts have the continuing effect of restricting the\n number of sales IQ makes through SourceOne‐affiliated websites.\n\f 14 No. 18‐175‐cv\n\n 1 Antitrust law is concerned with market conditions. See Gelboim,\n\n 2 823 F.3d at 773. Assuming that IQ is operating in a market affected by\n\n 3 anticompetitive conduct, the question of actual injury becomes\n\n 4 whether IQ is worse off than it would be if the market were free of\n\n 5 anticompetitive forces. IQ has alleged that the Defendants’\n\n 6 anticompetitive conduct affected the market, and that, after it entered\n\n 7 the market, its sales through SourceOne suffered as a result. The\n\n 8 manner of IQ’s entrance into the SourceOne agreement\n\n 9 notwithstanding, it is entitled to conduct its business in a market that\n\n10 is not infected with an anticompetitive distortion. Moreover, this is\n\n11 the type of injury the antitrust laws were designed to prevent. We\n\n12 conclude that IQ has adequately alleged an actual injury.\n\n13 3. Gatt Step Three\n\n14 Finally, at Gatt’s third step IQ must demonstrate that the\n\n15 Defendants’ anticompetitive behavior caused its actual injury. Gatt,\n\n16 711 F.3d at 76. IQ has satisfied this requirement. Assuming that IQ has\n\n17 suffered an actual injury as we determined in step two, there is no\n\n18 substantial dispute that IQ has adequately alleged that the\n\n19 Defendants’ anticompetitive behavior caused the injury. See\n\n20 Brunswick, 429 U.S. at 489 (the plaintiff must show that the injury\n\n21 “flows from that which makes defendants’ acts unlawful”).\n\f 15 No. 18‐175‐cv\n\n 1 B. Efficient‐Enforcer Test\n\n 2 Even if IQ has cleared the antitrust‐injury hurdle, there is more to\n\n 3 the antitrust standing requirement. An antitrust plaintiff must also\n\n 4 show that it is an “efficient enforcer” of the antitrust laws. Daniel, 428\n\n 5 F.3d at 443.\n\n 6 A four‐factor test is employed to determine whether an antitrust\n\n 7 plaintiff is an efficient enforcer; thus we must evaluate: (1) “the\n\n 8 directness or indirectness of the asserted injury,” (2) “the existence of\n\n 9 an identifiable class of persons whose self‐interest would normally\n\n10 motivate them to vindicate the public interest in antitrust\n\n11 enforcement,” (3) “the speculativeness of the alleged injury,” and (4)\n\n12 “the difficulty of identifying damages and apportioning them among\n\n13 direct and indirect victims so as to avoid duplicative recoveries.” Id.\n\n14 (internal quotations marks and citations omitted). These four factors\n\n15 need not be given equal weight: the relative significance of each factor\n\n16 will depend on the circumstances of the particular case. Id.\n\n17 To determine whether IQ is an efficient enforcer of the antitrust\n\n18 laws, we must first distinguish the different types of antitrust\n\n19 violations IQ seeks to enforce. There are three types of antitrust\n\n20 violations at issue in this appeal: organizing boycotts of\n\n21 (1) SourceOne‐affiliated websites, (2) the SDAs, and (3) IQ. The first\n\n22 two violations allege instances of unlawful pressure placed on IQ’s\n\f 16 No. 18‐175‐cv\n\n 1 business indirectly due to a boycott of SourceOne and the SDAs (“the\n\n 2 indirect boycott allegations”), and the third violation alleges a direct\n\n 3 boycott of IQ (“the direct boycott allegations”).\n\n 4 1. The Indirect Boycott Allegations\n\n 5 Directness of the injury. The first efficient‐enforcer factor requires\n\n 6 a direct injury: “Directness in the antitrust context means close in the\n\n 7 chain of causation.” Gatt, 711 F.3d at 78 (internal citation and\n\n 8 quotation marks omitted); see also Paycom Billing Servs., Inc. v.\n\n 9 Mastercard Int’l, Inc., 467 F.3d 283, 293 (2d Cir. 2006) (finding the\n\n10 plaintiff’s injury too indirect when it “flowed from the injuries”\n\n11 suffered by other parties).\n\n12 As to IQ’s allegations that the Defendants engaged in an unlawful\n\n13 campaign to boycott the SourceOne‐affiliated websites and the SDAs\n\n14 themselves, the violation is too remote to satisfy this first factor. We\n\n15 agree with the district court that IQ’s claims with respect to these\n\n16 allegations are derivative and indirect: the harm to IQ resulted from\n\n17 injury to SourceOne and the SDAs.\n\n18 To be sure, the infliction of a derivative injury does not always\n\n19 render an antitrust plaintiff’s injury too indirect under the efficient‐\n\n20 enforcer test. See In re DDAVP, 585 F.3d at 688 (derivative harm is\n\n21 sufficiently direct when “harming competitors [is] simply a means for\n\n22 the defendants to charge the plaintiffs higher prices”). Thus, in In re\n\f 17 No. 18‐175‐cv\n\n 1 DDAVP, the ultimate goal of the anticompetitive scheme to harm\n\n 2 competitors was to charge the consumers higher prices. Id. at 682. By\n\n 3 contrast, the Defendants here sought to put SourceOne—not IQ—out\n\n 4 of business by undermining SourceOne’s new and disruptive online\n\n 5 sales model. IQ was not the target of annihilation; it was simply\n\n 6 collateral damage.4 IQ’s alleged injury is therefore too indirect.\n\n 7 Sufficiently motivated plaintiff. Under the second efficient‐\n\n 8 enforcer factor, IQ has failed to adequately allege that it is a\n\n 9 sufficiently motivated plaintiff such that it is part of “an identifiable\n\n10 class . . . whose self‐interest would normally motivate [it] to vindicate\n\n11 the public interest in antitrust enforcement.” Gatt, 711 F.3d at 79\n\n12 (quoting AGC, 459 U.S. at 542). In this case, several plaintiffs have\n\n13 already sued the Defendants and have alleged these same antitrust\n\n14 violations. See SourceOne Dental, Inc. v. Patterson Cos., Inc., et al., No.\n\n15 15‐cv‐05440 (BMC) (E.D.N.Y filed Sept. 21, 2015) (suit brought by\n\n16 SourceOne); In re Dental Supplies Antitrust Litig., No. 16‐cv‐00696\n\n\n IQ argues that the district court erred by applying the “target area test.”\n 4\n\n We abandoned that test over thirty years ago in Crimpers Promotions Inc. v.\n Home Box Office, Inc., 724 F.2d 290, 292–93 (2d Cir. 1983). In any event, the\n district court did not apply the “target area test” when it found that IQ had\n not suffered a direct injury under the first efficient‐enforcer factor. The\n “target area test” used to ask whether a plaintiff was within “that sector of\n the economy which is endangered by a breakdown of competitive\n conditions in the particular industry.” Id. at 292 (internal quotation marks\n omitted). The district court did not ask that question. It properly asked\n whether IQ was a “target” of the Defendants’ unlawful conspiracy in the\n context of assessing whether that injury was sufficiently direct.\n\f 18 No. 18‐175‐cv\n\n 1 (BMC) (E.D.N.Y. filed Feb. 9, 2016) (suit brought by dental offices).\n\n 2 Although the existence of more‐motivated plaintiffs is not dispositive,\n\n 3 the presence of plaintiffs who are better situated to vindicate the\n\n 4 antitrust laws is relevant to this second factor. See In re DDAVP, 585\n\n 5 F.3d at 688–89. With respect to the challenged boycotts, SourceOne is\n\n 6 a better‐positioned plaintiff than IQ because SourceOne has been\n\n 7 more directly injured by the alleged antitrust conspiracy than IQ. And\n\n 8 SourceOne has in fact sued the Defendants seeking to enforce the\n\n 9 antitrust laws.\n\n10 IQ argues that it is sufficiently motivated because none of the\n\n11 parties that have already sued (or could sue) the Defendants stand to\n\n12 recover lost profits. This is IQ’s most promising claim that it is a\n\n13 properly motivated plaintiff: while SourceOne and the SDAs earn a\n\n14 commission on the sales, neither earns a profit. But this alone will not\n\n15 qualify IQ as a sufficiently motivated plaintiff. The antitrust laws\n\n16 recognize that “not every victim of an antitrust violation needs to be\n\n17 compensated under the antitrust laws in order for the antitrust laws\n\n18 to be efficiently enforced.” Gelboim, 823 F.3d at 779. IQ’s (highly\n\n19 speculative, as discussed below) lost profits do not tip the scales.\n\n20 In short, “[t]he justification for permitting [IQ] ‘to perform the\n\n21 office of a private attorney general’ is greatly diminished because\n\n22 ‘[d]enying [IQ] a remedy on the basis of its allegations in this case is\n\n23 not likely to leave a significant antitrust violation undetected or\n\f 19 No. 18‐175‐cv\n\n 1 unremedied.’” Paycom, 467 F.3d at 294 (quoting AGC, 459 U.S. at 542).\n\n 2 Given that IQ is further removed from the harm caused by the\n\n 3 Defendants than the parties directly affected by the boycott that have\n\n 4 already sued the Defendants, the second efficient‐enforcer factor\n\n 5 weighs against IQ’s antitrust standing.\n\n 6 Speculative Damages. Under the third efficient‐enforcer factor we\n\n 7 must consider whether IQ’s “asserted damages are speculative.” Gatt,\n\n 8 711 F.3d at 76. Although “some degree of uncertainty stems from the\n\n 9 nature of antitrust law,” a high degree of speculation in a damages\n\n10 calculation suggests that “a given plaintiff is an inefficient engine of\n\n11 enforcement.” Gelboim, 823 F.3d at 779.\n\n12 The derivative nature of IQ’s alleged injuries renders its potential\n\n13 recovery highly speculative. As the district court correctly\n\n14 ascertained, calculating IQ’s damages essentially would require the\n\n15 creation of an “alternative universe.” IQ Dental Supply, Inc. v. Henry\n\n16 Schein, Inc., No. 17‐cv‐4834, 2017 WL 6557482, at *10 (E.D.N.Y. Dec.\n\n17 21, 2017). IQ would have to model far more than basic lost sales and\n\n18 lost profits. It would need to first show how many additional SDAs\n\n19 would have partnered with SourceOne but for the Defendants’\n\n20 conduct, second demonstrate the types of agreements SourceOne and\n\n21 IQ would have had with each of those SDAs, and finally show how\n\n22 many SDA customers would have purchased IQ‐supplied products\n\n23 through a SourceOne‐affiliated website. Thus, IQ’s damages\n\f 20 No. 18‐175‐cv\n\n 1 calculation rests on multiple layers of speculation. See id. (“Any\n\n 2 damages estimate would require evidence to ‘support a just and\n\n 3 reasonable estimate of damages,’ and it is difficult to see how\n\n 4 appellants would arrive at such an estimate, even with the aid of\n\n 5 expert testimony.” (internal quotation marks omitted) (quoting U.S.\n\n 6 Football League v. Nat’l Football League, 842 F.2d 1335, 1378 (2d Cir.\n\n 7 1988))). No amount of expert testimony can adequately ameliorate the\n\n 8 highly speculative nature of IQ’s alleged losses.\n\n 9 Duplicative and difficult to apportion damages. The fourth factor,\n\n10 duplicative recovery, also cuts against IQ. The damages to which IQ\n\n11 lays claim—lost profits from sales it would have made through\n\n12 SourceOne‐affiliated websites absent the Defendants’ anticompetitive\n\n13 conduct—are exactly the same damages SourceOne’s initial suppliers,\n\n14 DDS and Arnold, could have claimed.\n\n15 IQ argues that the potential for duplicative recovery has become\n\n16 irrelevant to the efficient‐enforcer analysis because any antitrust\n\n17 claims DDS and Arnold might have against the Defendants are now\n\n18 time‐barred. But we reiterate that the efficient‐enforcer factors are\n\n19 concerned with finding the plaintiffs best suited to serve as “private\n\n20 attorney[s] general,” AGC, 459 U.S. at 542, and not with identifying\n\n21 every plaintiff who might sue. Whether external or practical\n\n22 considerations (such as the statute of limitations) may eliminate a\n\n23 duplicative damages concern, therefore, is not substantially material.\n\f 21 No. 18‐175‐cv\n\n 1 The efficient‐enforcer factor asks, in the overall scheme of antitrust\n\n 2 enforcement, whether a potential antitrust plaintiff stands within that\n\n 3 scheme as someone well positioned to enforce the antitrust laws. The\n\n 4 existence of other plaintiffs who could lay claim to precisely the same\n\n 5 damages, whether in theory or in actuality, indicates that the would‐\n\n 6 be antitrust plaintiff might not be well positioned to vindicate the\n\n 7 antitrust laws for the benefit of the public. See id. Indeed, it would be\n\n 8 strange and unworkable if new efficient enforcers sprang up simply\n\n 9 by operation of the statute of limitations on the other enforcers.\n\n10 In sum, we agree with the district court that because IQ is not\n\n11 positioned to efficiently enforce the claims that the Defendants\n\n12 harmed it by conspiring to boycott SourceOne‐affiliated websites and\n\n13 the SDAs, IQ does not have antitrust standing to bring these claims.\n\n14 2. The Direct Boycott Allegations\n\n15 IQ also alleges that the Defendants injured it by means of a direct\n\n16 boycott. IQ claims that the Defendants pressured the manufacturers\n\n17 to stop supplying IQ, frightened manufacturers away from supplying\n\n18 IQ in the first place, and otherwise disparaged IQ’s business to its\n\n19 customers and potential customers.\n\n20 We find, with respect to these particular allegations, that IQ is an\n\n21 efficient enforcer and thus has antitrust standing to proceed with its\n\n22 direct boycott claim against the Defendants.\n\f 22 No. 18‐175‐cv\n\n 1 Directness of the injury. The direct boycott injury IQ alleges is\n\n 2 neither indirect nor derivative. IQ claims that the Defendants directly\n\n 3 pressured manufacturers to stop selling their products to IQ, and that\n\n 4 the Defendants sought to damage IQ’s business reputation with its\n\n 5 customers. Because IQ was the Defendants’ target, these are direct\n\n 6 injuries.\n\n 7 Sufficiently motivated plaintiff. Second, IQ is the most‐motivated\n\n 8 plaintiff with respect to the Defendants’ alleged direct boycott of IQ.\n\n 9 See Gatt, 711 F.3d at 78. Unlike the claims of injury from the indirect\n\n10 pressure on SourceOne and the SDAs, IQ is the “immediate victim[]”\n\n11 of any direct boycott of IQ. AGC, 459 U.S. at 541. It has suffered a\n\n12 direct loss of sales. By contrast, none of the plaintiffs best positioned\n\n13 to enforce IQ’s claims of indirect boycott are well positioned to\n\n14 enforce IQ’s allegations of direct boycott.\n\n15 Speculative damages. The damages that flow from the\n\n16 Defendants’ alleged direct boycott of IQ would not necessarily be\n\n17 speculative—such damages would relate to instances of potentially\n\n18 ascertainable business losses. The value of each lost opportunity\n\n19 might be calculated based on IQ’s historical sales data without undue\n\n20 speculation.\n\n21 Duplicative recovery. IQ’s recovery of damages related to the\n\n22 direct boycott of IQ would not be duplicative. See Gatt, 711 F.3d at 79–\n\f 23 No. 18‐175‐cv\n\n 1 80. Unlike the indirect claims, any damages in connection with the\n\n 2 Defendants’ direct boycott of IQ could not also be claimed by Arnold\n\n 3 and DDS. These injuries are specific to IQ alone.\n\n 4 The Defendants argue that IQ fails to state plausible claims for\n\n 5 relief for direct injury because “the complaint does not contain factual\n\n 6 allegations that Defendants engaged in any joint conduct to boycott\n\n 7 IQ.” Appellees’ Br. at 55. This argument fails to recognize that the\n\n 8 allegations of direct boycott are part of the Defendants’ vast and\n\n 9 multipronged attack on SourceOne’s platforms, the SDAs, the\n\n10 distributors, and dental offices. In other words, IQ has not alleged that\n\n11 it has suffered an antitrust injury from the Defendants’ direct boycott\n\n12 in isolation. Although, as the Defendants note, “complaints about\n\n13 price‐cutters are natural—and from the manufacturer’s perspective,\n\n14 unavoidable—reactions by distributors to the activities of their\n\n15 rivals,” Monsanto Co. v. Spray‐Rite Serv. Corp., 465 U.S. 752, 763 (1984)\n\n16 (internal citation and quotation marks omitted), IQ’s complaint here\n\n17 is not limited to price cutting. IQ has alleged that the Defendants, as\n\n18 part of their elaborate and extensive scheme to force SourceOne and\n\n19 associated entities out of business, exerted pressure on some of IQ’s\n\n20 suppliers to boycott IQ.\n\n21 ***\n\f 24 No. 18‐175‐cv\n\n 1 In sum, IQ is an efficient enforcer of the antitrust laws solely with\n\n 2 respect to IQ’s allegations that it has been directly boycotted by the\n\n 3 actions of the Defendants. As to these allegations, we vacate the\n\n 4 district court’s judgment and remand for further proceedings on IQ’s\n\n 5 claim.\n\n 6 II. IQ’S STATE LAW CLAIMS\n\n 7 A. New York and New Jersey Antitrust Claims\n\n 8 IQ brought parallel antitrust claims under New York’s Donnelly\n\n 9 Act, N.Y. Gen. Bus. Law § 340 et seq., and the New Jersey Antitrust\n\n10 Act, N.J. Stat. Ann. §§ 56:9‐1 et seq. We decide questions of antitrust\n\n11 standing under both New York and New Jersey antitrust law in\n\n12 conformity with federal antitrust law. Gatt, 711 F.3d at 81–82 (holding\n\n13 that the Donnelly Act should generally be interpreted consistently\n\n14 with federal antitrust law (citing X.L.O. Concrete Corp. v. Rivergate\n\n15 Corp., 634 N.E.2d 158, 161 (N.Y. 1994))); see also State v. Lawn King, Inc.,\n\n16 417 A.2d 1025, 1032 (N.J. 1980) (“[T]he New Jersey act is to be\n\n17 construed in harmony with ruling judicial interpretations of\n\n18 comparable Federal antitrust statutes and to effectuate, insofar as\n\n19 practicable, a uniformity in the laws of those states which enact it.”\n\n20 (internal quotation marks omitted)).\n\n21 Therefore, our holding with respect to IQ’s state law antitrust\n\n22 claims mirrors our federal antitrust holding discussed above. IQ’s\n\f 25 No. 18‐175‐cv\n\n 1 indirect allegations—the boycott of SourceOne and the SDAs—fail\n\n 2 because IQ is not an efficient enforcer. IQ’s state‐law antitrust claims\n\n 3 that the Defendants directly boycotted IQ’s business, however, may\n\n 4 proceed.\n\n 5 B. IQ’s State Law Tort Claims\n\n 6 Our final task is to determine the fate of IQ’s remaining state law\n\n 7 claims. IQ asserted common‐law claims of tortious interference with\n\n 8 prospective business relations, civil conspiracy, and aiding and\n\n 9 abetting.\n\n10 1. Tortious Interference with Prospective Business\n11 Relations\n12 Under New York law, a plaintiff claiming tortious interference\n\n13 with prospective business relations must “show the defendant’s\n\n14 interference with business relations existing between the plaintiff and\n\n15 a third party, either with the sole purpose of harming the plaintiff or\n\n16 by means that are dishonest, unfair, or in any other way improper.”\n\n17 PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.\n\n18 1987) (internal citation and quotation marks omitted), abrogated on\n\n19 other grounds by Hannex Corp. v. GMI, Inc., 140 F.3d 194, 206 n.9 (2d\n\n20 Cir. 1998). But where, as it does here, “the defendant’s interference is\n\n21 intended, at least in part, to advance its own competing interests, the\n\n22 claim will fail unless the means employed include criminal or\n\n23 fraudulent conduct.” Id.\n\f 26 No. 18‐175‐cv\n\n 1 The district court dismissed IQ’s tortious interference claim\n\n 2 because IQ failed to allege a “viable antitrust claim” and therefore\n\n 3 could not plausibly allege that it had suffered criminal or tortious\n\n 4 behavior. Second, the district court determined, consistent with the\n\n 5 efficient‐enforcer analysis, that IQ had not plausibly alleged that the\n\n 6 Defendants’ conduct was the proximate cause of its injuries because\n\n 7 IQ had suffered only indirect harm. Finally, with respect to IQ’s\n\n 8 allegations that the Defendants directly boycotted its business, the\n\n 9 district court found them too “threadbare” to sustain a tortious\n\n10 interference claim.\n\n11 We agree with the district court that IQ’s claims of tortious\n\n12 interference with respect to IQ’s allegations of indirect pressure by the\n\n13 Defendants (the boycott of SourceOne and the SDAs) should be\n\n14 dismissed because IQ failed to plausibly allege the underlying\n\n15 criminal or tortious conduct on which the tortious interference claim\n\n16 must be based.\n\n17 We disagree with the district court, however, that IQ’s claims of\n\n18 direct tortious interference are too scant to survive a motion to\n\n19 dismiss. As discussed above, IQ has plausibly alleged that it suffered\n\n20 an antitrust injury resulting from the Defendants causing a direct\n\n21 boycott of its business. Accordingly, this allegation is sufficient to\n\n22 allow IQ’s tortious interference claim to proceed. Therefore, to the\n\n23 extent that the district court’s dismissal of IQ’s tortious interference\n\f 27 No. 18‐175‐cv\n\n 1 claim rested on a misapprehension of the distinction between IQ’s\n\n 2 claims of indirect and direct pressure on its business by the\n\n 3 Defendants, the judgment of the district court is vacated and\n\n 4 remanded to allow the tortious interference claims premised on the\n\n 5 direct boycott of IQ to proceed.\n\n 6 2. Civil Conspiracy and Aiding and Abetting\n\n 7 IQ also asserted claims for state civil conspiracy and aiding and\n\n 8 abetting.5 Because IQ’s civil conspiracy and aiding and abetting\n\n 9 claims were derivative of its tortious interference claim, the district\n\n10 court dismissed these claims as tag‐along claims. Consistent with our\n\n11 analysis above, we vacate in part the judgment of the district court as\n\n12 to these claims with respect to IQ’s direct boycott allegations.\n\n13 ***\n\n14 To recap, we conclude that while IQ has alleged an antitrust injury,\n\n15 it is not an efficient enforcer with respect to its allegations that the\n\n16 Defendants unlawfully caused the boycotts of SourceOne and the\n\n17 SDAs. We therefore affirm the judgment of the district court\n\n18 dismissing those claims. With respect to IQ’s allegations that the\n\n\n\n We express no opinion at this stage as to the district court’s finding that\n 5\n\n the existence of an independent tort of civil conspiracy in New Jersey did\n not raise a question of conflict of laws. IQ has properly pleaded a tortious\n interference claim from which its claim for civil conspiracy (under the law\n of either jurisdiction) can be derived.\n\f 28 No. 18‐175‐cv\n\n 1 Defendants directly brought about a boycott of IQ, however, we find\n\n 2 that IQ is best positioned to enforce those antitrust violations.\n\n 3 Accordingly, we vacate the judgment and remand the case to the\n\n 4 district court on IQ’s allegations of direct boycott only. IQ’s state law\n\n 5 antitrust claims and common law tort claims are also vacated and\n\n 6 remanded, but only to the extent that they rely on IQ’s allegations that\n\n 7 it suffered harm as a result of the direct boycott.\n\n 8 CONCLUSION\n\n 9 The judgment of the district court is AFFIRMED in part and\n\n10 VACATED in part. We REMAND this case to the district court for\n\n11 further proceedings consistent with this opinion.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: IQ DENTAL SUPPLY, INC., Plaintiff-Appellant, v. HENRY SCHEIN, INC., Patterson Companies, Inc., Benco Dental Supply Company, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐175‐cv\\n IQ Dental Supply, Inc. v. Henry Schein, Inc.\\n\\n 1\\n\\n 2 In the\\n 3 United States Court of Appeals\\n 4 For the Second Circuit\\n 5 ________\\n 6\\n 7 AUGUST TERM, 2018\\n 8\\n 9 ARGUED: SEPTEMBER 13, 2018\\n10 DECIDED: MAY 10, 2019\\n11\\n12 No. 18‐175‐cv\\n13\\n14 IQ DENTAL SUPPLY, INC.,\\n15 Plaintiff‐Appellant,\\n16\\n17 v.\\n18\\n19 HENRY SCHEIN, INC., PATTERSON COMPANIES, INC., BENCO DENTAL\\n20 SUPPLY COMPANY,\\n21 Defendants‐Appellees.\\n22 ________\\n23\\n24 Appeal from the United States District Court\\n25 for the Eastern District of New York.\\n26 No. 17‐cv‐4834 – Brian M. Cogan, Judge.\\n27 ________\\n28\\n29 Before: WALKER, JACOBS, and POOLER, Circuit Judges.\\n30 ________\\n31\\n32 This case involves allegations that three large dental‐supply\\n\\n33 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\\n\\f 2 No. 18‐175‐cv\\n\\n 1 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\\n\\n 2 to violate the antitrust laws by engineering the boycott of an online\\n\\n 3 distribution portal, SourceOne, Inc. (“SourceOne”), and dental\\n\\n 4 manufacturers and suppliers associated with SourceOne. The\\n\\n 5 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\\n\\n 6 distributor that sold dental products through SourceOne’s online\\n\\n 7 portals. IQ sued the Defendants in the United States District Court for\\n\\n 8 the Eastern District of New York alleging violations of federal and\\n\\n 9 state antitrust laws and asserting common law tort claims. The district\\n\\n10 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\\n\\n11 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\\n\\n12 appeals that decision.\\n\\n13 We affirm the district court’s dismissal of IQ’s claim that it has\\n\\n14 antitrust standing to challenge the boycott of SourceOne and the state\\n\\n15 dental associations (“SDAs”) that had partnered with SourceOne. As\\n\\n16 to IQ’s claim that it has standing to challenge injury inflicted by the\\n\\n17 direct boycott of its business, however, we find that IQ’s antitrust and\\n\\n18 tort claims may go forward on these direct boycott allegations only.\\n\\n19 Accordingly, we vacate in part the judgment of the district court and\\n\\n20 remand the case for further proceedings consistent with this opinion.\\n\\n21 ________\\n22\\n23 LAWRENCE FOX, Duane Morris LLP, New York, NY\\n24 (William B. Pollard, Amy C. Gross, Duane Morris\\n\\f 3 No. 18‐175‐cv\\n\\n 1 LLP, New York, NY; J. Manly Parks, Robert M.\\n 2 Palumbos, Duane Morris LLP, Philadelphia, PA,\\n 3 on the brief), for Plaintiff‐Appellant.\\n\\n 4 RICHARD C. GODFREY, Kirkland & Ellis LLP,\\n 5 Chicago, IL (Barack S. Echols, Kirkland & Ellis\\n 6 LLP, Chicago, IL; Colin R. Kass, Adrian Fontecilla,\\n 7 Proskauer Rose LLP, Washington, DC; Bradley I.\\n 8 Ruskin, Proskauer Rose LLP, New York, NY, on the\\n 9 brief), for Defendant‐Appellee Henry Schein, Inc.\\n\\n10 James J. Long, Scott M. Flaherty, Briggs and\\n11 Morgan, P.A., Minneapolis, MN, for Defendant‐\\n12 Appellee Patterson Companies, Inc.\\n\\n13 Howard D. Scher, Thomas P. Manning, Samantha\\n14 L. Southall, Buchanan Ingersoll & Rooney PC,\\n15 Philadelphia, PA, for Defendant‐Appellee Benco\\n16 Dental Supply Company.\\n\\n17 ________\\n18\\n19 JOHN M. WALKER, JR., Circuit Judge.\\n\\n20 This case involves allegations that three large dental‐supply\\n\\n21 distributors—Henry Schein, Inc., Patterson Companies, Inc., and\\n\\n22 Benco Dental Supply Company, Inc. (“the Defendants”)—conspired\\n\\n23 to violate the antitrust laws by engineering the boycott of an online\\n\\n24 distribution portal, SourceOne, Inc. (“SourceOne”), and of dental\\n\\n25 manufacturers and suppliers associated with SourceOne. The\\n\\n26 Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply\\n\\n27 distributor that sold dental products through SourceOne’s online\\n\\n28 portals. IQ sued the Defendants in the United States District Court for\\n\\f 4 No. 18‐175‐cv\\n\\n 1 the Eastern District of New York alleging violations of federal and\\n\\n 2 state antitrust laws and asserting common law tort claims. The district\\n\\n 3 court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of\\n\\n 4 antitrust standing and IQ’s tort claims for failure to state a claim. IQ\\n\\n 5 appeals that decision.\\n\\n 6 We affirm the district court’s dismissal of IQ’s claim that it has\\n\\n 7 antitrust standing to challenge the boycott of SourceOne and the state\\n\\n 8 dental associations (“SDAs”) that had partnered with SourceOne. As\\n\\n 9 to IQ’s claim that it has standing to challenge injury inflicted by the\\n\\n10 direct boycott of its business, however, we find that IQ’s antitrust and\\n\\n11 tort claims may go forward on these direct boycott allegations only.\\n\\n12 Accordingly, we vacate in part the judgment of the district court and\\n\\n13 remand the case for further proceedings consistent with this opinion.\\n\\n14 BACKGROUND\\n\\n15 There are only a small number of dental‐supply companies that\\n\\n16 distribute products to dental practices. Three of those companies, the\\n\\n17 Defendants, occupy approximately 80% of the dental‐supply\\n\\n18 distribution market.1 They purchase dental supplies and equipment\\n\\n19 from different manufacturers, and then sell the products to dental\\n\\n20 practices nationwide. This one‐stop‐shop model obviates the need for\\n\\n 1As we must at this stage, we take all of IQ’s well‐pleaded facts as true.\\n See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).\\n\\f 5 No. 18‐175‐cv\\n\\n 1 dental practices to purchase their dental equipment from each\\n\\n 2 manufacturer.\\n\\n 3 IQ is also a distributor of dental supplies, albeit one with\\n\\n 4 considerably less market share than any of the Defendants. IQ entered\\n\\n 5 the market in 2009. Beginning in 2014, IQ adopted a new distribution\\n\\n 6 model. Instead of distributing dental supplies through the traditional\\n\\n 7 method of deploying on‐the‐ground sales teams around the country\\n\\n 8 (the model used by the Defendants) IQ distributed dental supplies\\n\\n 9 through an online portal hosted by SourceOne.\\n\\n10 SourceOne’s online portal is a website where dental practices can\\n\\n11 purchase their supplies. SourceOne itself does not sell any dental\\n\\n12 supplies through the website but serves as the platform through\\n\\n13 which dental‐supply distributors, such as IQ, sell products to dental\\n\\n14 offices. The distributors that used SourceOne’s portals pay SourceOne\\n\\n15 a commission for each sale made through the website. In 2013,\\n\\n16 SourceOne launched additional distribution websites in partnership\\n\\n17 with the SDAs in Texas, Arizona, and Nevada. These SDA‐specific\\n\\n18 sites operated much like SourceOne’s own portal, but each SDA had\\n\\n19 its own unique domain name. SourceOne remitted a portion of their\\n\\n20 commission to the SDA for each sale made through an SDA‐specific\\n\\n21 website.\\n\\f 6 No. 18‐175‐cv\\n\\n 1 IQ was not SourceOne’s first distribution partner. Two other\\n\\n 2 distributors—DDS Dental Supply and Arnold Dental Supply (“DDS\\n\\n 3 and Arnold”)—distributed products through SourceOne before IQ\\n\\n 4 reached its agreement with SourceOne. But sometime around April\\n\\n 5 2014 both DDS and Arnold stopped selling through SourceOne\\n\\n 6 because the Defendants pressured dental‐supply manufacturers to\\n\\n 7 stop supplying DDS and Arnold due to their arrangement with\\n\\n 8 SourceOne. After losing DDS and Arnold as distribution partners,\\n\\n 9 SourceOne tried to enlist a third distributor to supply dental\\n\\n10 products, but that distributor declined, allegedly because of the same\\n\\n11 anticompetitive behavior by the Defendants that had caused DDS and\\n\\n12 Arnold to withdraw.\\n\\n13 SourceOne’s need for a distributor to supply its online portals\\n\\n14 opened the door for IQ. In May of 2014, IQ signed a contract to\\n\\n15 distribute through SourceOne‐affiliated websites, and, since then, IQ\\n\\n16 has supplied 90% of the dental supplies sold through SourceOne’s\\n\\n17 website and its affiliated SDA websites. But IQ soon encountered the\\n\\n18 same problem that DDS and Arnold had faced: pressure from the\\n\\n19 Defendants intended to disrupt SourceOne’s online sales portals\\n\\n20 began to affect IQ’s business.\\n\\n21 IQ alleged that the Defendants engaged in this campaign to force\\n\\n22 SourceOne out of business by conspiring to organize a boycott of:\\n\\n23 (1) SourceOne and SourceOne‐affiliated SDA websites,\\n\\f 7 No. 18‐175‐cv\\n\\n 1 (2) participating SDAs and SDA trade shows, and (3) IQ directly by\\n\\n 2 pressuring the manufacturers to stop supplying IQ. It also alleged\\n\\n 3 that the Defendants engaged in a price‐fixing conspiracy, which is not\\n\\n 4 part of this appeal. These unlawful boycotts allegedly frightened off\\n\\n 5 dental manufacturers, SDAs, and dental practices from doing\\n\\n 6 business with companies connected to SourceOne, and, as a result,\\n\\n 7 ultimately dealing with IQ. These boycotts “severely limited and\\n\\n 8 inhibited IQ’s growth and sales, and has cost IQ many millions of\\n\\n 9 dollars in lost profits.” Appellant’s Br. at 13.\\n\\n10 In August 2017, IQ sued the defendants in the Eastern District of\\n\\n11 New York, under the Sherman Act, 15 U.S.C. § 1, and corresponding\\n\\n12 state antitrust laws—the Donnelly Act, N.Y. Gen. Bus. Law §§ 340 et\\n\\n13 seq., and the New Jersey Antitrust Act, N.J. Stat. Ann. §§ 56:9‐1 et seq.\\n\\n14 IQ also brought common‐law claims for tortious interference with\\n\\n15 prospective business relations, civil conspiracy, and aiding and\\n\\n16 abetting.\\n\\n17 The district court granted the Defendants’ motion to dismiss IQ’s\\n\\n18 complaint. It determined that IQ failed to establish antitrust standing\\n\\n19 because it had neither alleged an antitrust injury, nor shown that it\\n\\n20 was an efficient enforcer of the antitrust laws. The remaining state law\\n\\n21 claims were dismissed for failure to state a claim. IQ now appeals that\\n\\n22 decision.\\n\\f 8 No. 18‐175‐cv\\n\\n 1 DISCUSSION\\n\\n 2 We review the district court’s grant of a motion to dismiss de novo;\\n\\n 3 we accept as true all factual claims and draw all reasonable inferences\\n\\n 4 in IQ’s favor. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir.\\n\\n 5 2016). Questions of standing are also reviewed de novo. In re DDAVP\\n\\n 6 Direct Purchaser Antitrust Litig., 585 F.3d 677, 688 (2d Cir. 2009).\\n\\n 7 I. Antitrust Standing\\n\\n 8 To survive the pleading stage, an antitrust plaintiff must\\n\\n 9 demonstrate that it has “antitrust standing.” See Daniel v. Am. Bd. of\\n\\n10 Emergency Med., 428 F.3d 408, 436–37 (2d Cir. 2005). Only antitrust\\n\\n11 standing is at issue here. The antitrust standing requirement reflects\\n\\n12 the judgment that “‘Congress did not intend the antitrust laws to\\n\\n13 provide a remedy in damages for all injuries that might conceivably\\n\\n14 be traced to an antitrust violation.’” Id. (quoting Associated Gen.\\n\\n15 Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S.\\n\\n16 519, 534 (1983)).\\n\\n17 To satisfy antitrust standing at the pleading stage a plaintiff must\\n\\n18 plausibly allege two things: (1) “that it suffered a ‘special kind of\\n\\n19 antitrust injury,’” and (2) “that it is a suitable plaintiff to pursue the\\n\\n20 alleged antitrust violations and thus is an ‘efficient enforcer’ of the\\n\\n21 antitrust laws.” Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,\\n\\n22 76 (2d Cir. 2013) (internal quotation marks omitted) (quoting Port\\n\\f 9 No. 18‐175‐cv\\n\\n 1 Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121–22 (2d Cir.\\n\\n 2 2007)). We address both these antitrust‐standing imperatives in turn.\\n\\n 3 A. Antitrust Injury\\n\\n 4 A plaintiff raising an antitrust claim must demonstrate antitrust\\n\\n 5 injury to “‘ensure[] that the harm claimed by the plaintiff corresponds\\n\\n 6 to the rationale for finding a violation of the antitrust laws in the first\\n\\n 7 place.’” Gatt, 711 F.3d at 76 (quoting Atl. Richfield Co. v. USA Petroleum\\n\\n 8 Co., 495 U.S. 328, 342 (1990)).\\n\\n 9 Our jurisprudence culminating in Gatt Communications, Inc. v.\\n\\n10 PMC Associates, L.L.C. established a three‐part test for determining\\n\\n11 whether the plaintiff has alleged an antitrust injury: (1) the court\\n\\n12 “must ‘identify[] the practice complained of and the reasons such a\\n\\n13 practice is or might be anticompetitive,’” Id. (quoting Port Dock, 507\\n\\n14 F.3d at 122); (2) the court must “identify the ‘actual injury the plaintiff\\n\\n15 alleges’ . . . [which] requires us to look to the ways in which the\\n\\n16 plaintiff claims it is in a ‘worse position’ as a consequence of the\\n\\n17 defendant’s conduct,” id. (quoting Port Dock, 507 F.3d at 122, and\\n\\n18 Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 486 (1977));\\n\\n19 and (3) the court compares the “‘anticompetitive effect of the specific\\n\\n20 practice at issue’ to the ‘actual injury the plaintiff alleges,’” id.\\n\\n21 (quoting Port Dock, 507 F.3d at 122). IQ has adequately pleaded an\\n\\n22 antitrust injury in accordance with our decision in Gatt.\\n\\f 10 No. 18‐175‐cv\\n\\n 1 1. Gatt Step One\\n\\n 2 At the first step of the Gatt analysis, IQ need allege only that the\\n\\n 3 Defendants have engaged in unlawful anticompetitive conduct. Id.\\n\\n 4 The bar for such a showing is a low one. See Port Dock, 507 F.3d at 122.\\n\\n 5 IQ has satisfied this requirement by plausibly alleging that the\\n\\n 6 Defendants conspired to boycott the SourceOne‐affiliated websites,\\n\\n 7 the SDAs, and IQ itself, and engaged in a price‐fixing campaign.2\\n\\n 8 These allegations easily satisfy Gatt’s initial requirement that IQ\\n\\n 9 allege unlawful anticompetitive conduct by the Defendants. See\\n\\n10 Klor’s, Inc. v. Broadway‐Hale Stores, Inc., 359 U.S. 207, 212 (1959)\\n\\n11 (“Group boycotts . . . have long been held to be in the forbidden\\n\\n12 category [under the antitrust laws].”).\\n\\n13 2. Gatt Step Two\\n\\n14 The second Gatt step requires us to isolate and identify IQ’s\\n\\n15 “actual injury” or the “ways in which the plaintiff claims it is in a\\n\\n\\n\\n\\n 2 The district court dismissed IQ’s price‐fixing claims because\\n competitors cannot claim injury from supracompetitive prices. See\\n Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 582–83\\n (1986) (“Nor can respondents recover damages for any conspiracy by\\n petitioners to charge higher than competitive prices . . . . Such conduct\\n would indeed violate the Sherman Act, but it could not injure respondents:\\n as petitioners’ competitors, respondents stand to gain from any conspiracy\\n to raise the market prices . . . ” (internal citations omitted)). IQ does not\\n pursue a price‐fixing antitrust conspiracy claim on appeal.\\n\\f 11 No. 18‐175‐cv\\n\\n 1 ‘worse position’ as a consequence of the defendant’s conduct.” Gatt,\\n\\n 2 711 F.3d at 76.\\n\\n 3 The Defendants argue that IQ is in no “worse position” due to their\\n\\n 4 conduct because the demise of DDS and Arnold provided IQ with the\\n\\n 5 opportunity to do business through SourceOne. But for their alleged\\n\\n 6 anticompetitive behavior, the Defendants claim, IQ would not have\\n\\n 7 made a single sale through SourceOne’s online portals—and\\n\\n 8 therefore IQ cannot allege that it has been made any worse off than it\\n\\n 9 would have been absent the Defendants’ anticompetitive scheme.\\n\\n10 Essentially, the argument goes, every sale IQ has made through\\n\\n11 SourceOne‐affiliated websites is a “bonus” sale that IQ would not\\n\\n12 have made in an undistorted market because DDS and Arnold would\\n\\n13 still be SourceOne’s primary distributors, and IQ has not alleged that\\n\\n14 it would have partnered with SourceOne were that the case.\\n\\n15 To support this argument, the Defendants rely on cases where\\n\\n16 courts have denied antitrust standing to a competitor that benefitted\\n\\n17 from a market distorted by anticompetitive conduct, see Matsushita\\n\\n18 Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 583 (1986)\\n\\n19 (no antitrust standing for competitors who would benefit from a\\n\\n20 price‐fixing conspiracy to raise prices); Sprint Nextel Corp. v. AT&T\\n\\n21 Inc., 821 F. Supp. 2d 308, 319–20 (D.D.C. 2011) (no antitrust standing\\n\\n22 because an increase in market price did not harm competitors);\\n\\n23 MacPherson’s Inc. v. Windermere Real Estate Services Co., 100 F. App’x\\n\\f 12 No. 18‐175‐cv\\n\\n 1 651, 654 (9th Cir. 2004) (no antitrust standing because the alleged\\n\\n 2 price‐fixing scheme would increase the plaintiff’s profits), and where\\n\\n 3 courts have denied antitrust standing to a competitor that alleged it\\n\\n 4 would have experienced an increase in its profits but for the\\n\\n 5 anticompetitive conduct, Alberta Gas Chemicals Ltd. v. E.I. Du Pont de\\n\\n 6 Nemours and Co., 826 F.2d 1235, 1243 (3d Cir. 1987) (no antitrust\\n\\n 7 standing for plaintiffs denied access to “windfall profits” as a result\\n\\n 8 of antitrust conspiracy).\\n\\n 9 But the plaintiff’s position in each of these cases is distinguishable\\n\\n10 from IQ’s. In three of the cases—Matsushita, MacPherson’s, and\\n\\n11 Sprint—the would‐be antitrust plaintiffs enjoyed continuing benefits\\n\\n12 as a direct result of the antitrust violations. The plaintiffs in these\\n\\n13 cases were competitors benefiting from the supracompetitive pricing\\n\\n14 that the conspiracy had produced. Matsushita, 475 U.S. at 583;\\n\\n15 MacPherson’s, 100 F. App’x at 654; Sprint, 821 F. Supp. 2d at 319–20.\\n\\n16 IQ, however, is not receiving a continuing benefit from the\\n\\n17 Defendants’ alleged antitrust violations because the Defendants’\\n\\n18 conduct is not producing an ongoing competitive advantage for IQ.3\\n\\n\\n\\n The Defendants maintain that because their anticompetitive behavior\\n 3\\n\\n is the but‐for cause of IQ’s agreement with SourceOne, any IQ sale made\\n through SourceOne‐affiliated websites constitutes an ongoing benefit to IQ.\\n But the cases cited by the Defendants deny standing to plaintiffs who\\n experience an ongoing beneficial market condition as a result of the\\n defendants’ conduct—not a one‐time market opportunity. By contrast, the\\n\\f 13 No. 18‐175‐cv\\n\\n 1 Instead, IQ alleges that the Defendants’ actions have decreased the\\n\\n 2 number of sales it has been able to make through SourceOne‐affiliated\\n\\n 3 websites.\\n\\n 4 Alberta Gas is distinguishable for a different reason: in that case the\\n\\n 5 plaintiffs claimed antitrust losses “stemming from the failure of a\\n\\n 6 competitor to bring about an increase in demand and price.” Alberta\\n\\n 7 Gas, 826 F.2d at 1243. The Third Circuit held that a lost “windfall\\n\\n 8 profit” is not an antitrust injury. Id. But IQ does not claim an actual\\n\\n 9 injury based on the loss of windfall profits such as that disallowed in\\n\\n10 Alberta Gas. IQ’s alleged losses do not stem from the denial of profits\\n\\n11 that would have resulted from an increased demand or new market\\n\\n12 absent the Defendants’ anticompetitive conduct.\\n\\n13 We agree with IQ that its role as a “replacement supplier” for\\n\\n14 SourceOne after the demise of DDS and Arnold does not defeat its\\n\\n15 claim of actual injury under the antitrust laws. Regardless of how IQ\\n\\n16 entered the market, once IQ was in the market it had a right to do\\n\\n17 business in a market undistorted by unlawful anticompetitive\\n\\n18 conduct. See Brunswick, 429 U.S. at 489 (plaintiffs must show that their\\n\\n19 injury is “of the type the antitrust laws were intended to prevent”).\\n\\n\\n\\n\\n Defendants’ ongoing boycotts have the continuing effect of restricting the\\n number of sales IQ makes through SourceOne‐affiliated websites.\\n\\f 14 No. 18‐175‐cv\\n\\n 1 Antitrust law is concerned with market conditions. See Gelboim,\\n\\n 2 823 F.3d at 773. Assuming that IQ is operating in a market affected by\\n\\n 3 anticompetitive conduct, the question of actual injury becomes\\n\\n 4 whether IQ is worse off than it would be if the market were free of\\n\\n 5 anticompetitive forces. IQ has alleged that the Defendants’\\n\\n 6 anticompetitive conduct affected the market, and that, after it entered\\n\\n 7 the market, its sales through SourceOne suffered as a result. The\\n\\n 8 manner of IQ’s entrance into the SourceOne agreement\\n\\n 9 notwithstanding, it is entitled to conduct its business in a market that\\n\\n10 is not infected with an anticompetitive distortion. Moreover, this is\\n\\n11 the type of injury the antitrust laws were designed to prevent. We\\n\\n12 conclude that IQ has adequately alleged an actual injury.\\n\\n13 3. Gatt Step Three\\n\\n14 Finally, at Gatt’s third step IQ must demonstrate that the\\n\\n15 Defendants’ anticompetitive behavior caused its actual injury. Gatt,\\n\\n16 711 F.3d at 76. IQ has satisfied this requirement. Assuming that IQ has\\n\\n17 suffered an actual injury as we determined in step two, there is no\\n\\n18 substantial dispute that IQ has adequately alleged that the\\n\\n19 Defendants’ anticompetitive behavior caused the injury. See\\n\\n20 Brunswick, 429 U.S. at 489 (the plaintiff must show that the injury\\n\\n21 “flows from that which makes defendants’ acts unlawful”).\\n\\f 15 No. 18‐175‐cv\\n\\n 1 B. Efficient‐Enforcer Test\\n\\n 2 Even if IQ has cleared the antitrust‐injury hurdle, there is more to\\n\\n 3 the antitrust standing requirement. An antitrust plaintiff must also\\n\\n 4 show that it is an “efficient enforcer” of the antitrust laws. Daniel, 428\\n\\n 5 F.3d at 443.\\n\\n 6 A four‐factor test is employed to determine whether an antitrust\\n\\n 7 plaintiff is an efficient enforcer; thus we must evaluate: (1) “the\\n\\n 8 directness or indirectness of the asserted injury,” (2) “the existence of\\n\\n 9 an identifiable class of persons whose self‐interest would normally\\n\\n10 motivate them to vindicate the public interest in antitrust\\n\\n11 enforcement,” (3) “the speculativeness of the alleged injury,” and (4)\\n\\n12 “the difficulty of identifying damages and apportioning them among\\n\\n13 direct and indirect victims so as to avoid duplicative recoveries.” Id.\\n\\n14 (internal quotations marks and citations omitted). These four factors\\n\\n15 need not be given equal weight: the relative significance of each factor\\n\\n16 will depend on the circumstances of the particular case. Id.\\n\\n17 To determine whether IQ is an efficient enforcer of the antitrust\\n\\n18 laws, we must first distinguish the different types of antitrust\\n\\n19 violations IQ seeks to enforce. There are three types of antitrust\\n\\n20 violations at issue in this appeal: organizing boycotts of\\n\\n21 (1) SourceOne‐affiliated websites, (2) the SDAs, and (3) IQ. The first\\n\\n22 two violations allege instances of unlawful pressure placed on IQ’s\\n\\f 16 No. 18‐175‐cv\\n\\n 1 business indirectly due to a boycott of SourceOne and the SDAs (“the\\n\\n 2 indirect boycott allegations”), and the third violation alleges a direct\\n\\n 3 boycott of IQ (“the direct boycott allegations”).\\n\\n 4 1. The Indirect Boycott Allegations\\n\\n 5 Directness of the injury. The first efficient‐enforcer factor requires\\n\\n 6 a direct injury: “Directness in the antitrust context means close in the\\n\\n 7 chain of causation.” Gatt, 711 F.3d at 78 (internal citation and\\n\\n 8 quotation marks omitted); see also Paycom Billing Servs., Inc. v.\\n\\n 9 Mastercard Int’l, Inc., 467 F.3d 283, 293 (2d Cir. 2006) (finding the\\n\\n10 plaintiff’s injury too indirect when it “flowed from the injuries”\\n\\n11 suffered by other parties).\\n\\n12 As to IQ’s allegations that the Defendants engaged in an unlawful\\n\\n13 campaign to boycott the SourceOne‐affiliated websites and the SDAs\\n\\n14 themselves, the violation is too remote to satisfy this first factor. We\\n\\n15 agree with the district court that IQ’s claims with respect to these\\n\\n16 allegations are derivative and indirect: the harm to IQ resulted from\\n\\n17 injury to SourceOne and the SDAs.\\n\\n18 To be sure, the infliction of a derivative injury does not always\\n\\n19 render an antitrust plaintiff’s injury too indirect under the efficient‐\\n\\n20 enforcer test. See In re DDAVP, 585 F.3d at 688 (derivative harm is\\n\\n21 sufficiently direct when “harming competitors [is] simply a means for\\n\\n22 the defendants to charge the plaintiffs higher prices”). Thus, in In re\\n\\f 17 No. 18‐175‐cv\\n\\n 1 DDAVP, the ultimate goal of the anticompetitive scheme to harm\\n\\n 2 competitors was to charge the consumers higher prices. Id. at 682. By\\n\\n 3 contrast, the Defendants here sought to put SourceOne—not IQ—out\\n\\n 4 of business by undermining SourceOne’s new and disruptive online\\n\\n 5 sales model. IQ was not the target of annihilation; it was simply\\n\\n 6 collateral damage.4 IQ’s alleged injury is therefore too indirect.\\n\\n 7 Sufficiently motivated plaintiff. Under the second efficient‐\\n\\n 8 enforcer factor, IQ has failed to adequately allege that it is a\\n\\n 9 sufficiently motivated plaintiff such that it is part of “an identifiable\\n\\n10 class . . . whose self‐interest would normally motivate [it] to vindicate\\n\\n11 the public interest in antitrust enforcement.” Gatt, 711 F.3d at 79\\n\\n12 (quoting AGC, 459 U.S. at 542). In this case, several plaintiffs have\\n\\n13 already sued the Defendants and have alleged these same antitrust\\n\\n14 violations. See SourceOne Dental, Inc. v. Patterson Cos., Inc., et al., No.\\n\\n15 15‐cv‐05440 (BMC) (E.D.N.Y filed Sept. 21, 2015) (suit brought by\\n\\n16 SourceOne); In re Dental Supplies Antitrust Litig., No. 16‐cv‐00696\\n\\n\\n IQ argues that the district court erred by applying the “target area test.”\\n 4\\n\\n We abandoned that test over thirty years ago in Crimpers Promotions Inc. v.\\n Home Box Office, Inc., 724 F.2d 290, 292–93 (2d Cir. 1983). In any event, the\\n district court did not apply the “target area test” when it found that IQ had\\n not suffered a direct injury under the first efficient‐enforcer factor. The\\n “target area test” used to ask whether a plaintiff was within “that sector of\\n the economy which is endangered by a breakdown of competitive\\n conditions in the particular industry.” Id. at 292 (internal quotation marks\\n omitted). The district court did not ask that question. It properly asked\\n whether IQ was a “target” of the Defendants’ unlawful conspiracy in the\\n context of assessing whether that injury was sufficiently direct.\\n\\f 18 No. 18‐175‐cv\\n\\n 1 (BMC) (E.D.N.Y. filed Feb. 9, 2016) (suit brought by dental offices).\\n\\n 2 Although the existence of more‐motivated plaintiffs is not dispositive,\\n\\n 3 the presence of plaintiffs who are better situated to vindicate the\\n\\n 4 antitrust laws is relevant to this second factor. See In re DDAVP, 585\\n\\n 5 F.3d at 688–89. With respect to the challenged boycotts, SourceOne is\\n\\n 6 a better‐positioned plaintiff than IQ because SourceOne has been\\n\\n 7 more directly injured by the alleged antitrust conspiracy than IQ. And\\n\\n 8 SourceOne has in fact sued the Defendants seeking to enforce the\\n\\n 9 antitrust laws.\\n\\n10 IQ argues that it is sufficiently motivated because none of the\\n\\n11 parties that have already sued (or could sue) the Defendants stand to\\n\\n12 recover lost profits. This is IQ’s most promising claim that it is a\\n\\n13 properly motivated plaintiff: while SourceOne and the SDAs earn a\\n\\n14 commission on the sales, neither earns a profit. But this alone will not\\n\\n15 qualify IQ as a sufficiently motivated plaintiff. The antitrust laws\\n\\n16 recognize that “not every victim of an antitrust violation needs to be\\n\\n17 compensated under the antitrust laws in order for the antitrust laws\\n\\n18 to be efficiently enforced.” Gelboim, 823 F.3d at 779. IQ’s (highly\\n\\n19 speculative, as discussed below) lost profits do not tip the scales.\\n\\n20 In short, “[t]he justification for permitting [IQ] ‘to perform the\\n\\n21 office of a private attorney general’ is greatly diminished because\\n\\n22 ‘[d]enying [IQ] a remedy on the basis of its allegations in this case is\\n\\n23 not likely to leave a significant antitrust violation undetected or\\n\\f 19 No. 18‐175‐cv\\n\\n 1 unremedied.’” Paycom, 467 F.3d at 294 (quoting AGC, 459 U.S. at 542).\\n\\n 2 Given that IQ is further removed from the harm caused by the\\n\\n 3 Defendants than the parties directly affected by the boycott that have\\n\\n 4 already sued the Defendants, the second efficient‐enforcer factor\\n\\n 5 weighs against IQ’s antitrust standing.\\n\\n 6 Speculative Damages. Under the third efficient‐enforcer factor we\\n\\n 7 must consider whether IQ’s “asserted damages are speculative.” Gatt,\\n\\n 8 711 F.3d at 76. Although “some degree of uncertainty stems from the\\n\\n 9 nature of antitrust law,” a high degree of speculation in a damages\\n\\n10 calculation suggests that “a given plaintiff is an inefficient engine of\\n\\n11 enforcement.” Gelboim, 823 F.3d at 779.\\n\\n12 The derivative nature of IQ’s alleged injuries renders its potential\\n\\n13 recovery highly speculative. As the district court correctly\\n\\n14 ascertained, calculating IQ’s damages essentially would require the\\n\\n15 creation of an “alternative universe.” IQ Dental Supply, Inc. v. Henry\\n\\n16 Schein, Inc., No. 17‐cv‐4834, 2017 WL 6557482, at *10 (E.D.N.Y. Dec.\\n\\n17 21, 2017). IQ would have to model far more than basic lost sales and\\n\\n18 lost profits. It would need to first show how many additional SDAs\\n\\n19 would have partnered with SourceOne but for the Defendants’\\n\\n20 conduct, second demonstrate the types of agreements SourceOne and\\n\\n21 IQ would have had with each of those SDAs, and finally show how\\n\\n22 many SDA customers would have purchased IQ‐supplied products\\n\\n23 through a SourceOne‐affiliated website. Thus, IQ’s damages\\n\\f 20 No. 18‐175‐cv\\n\\n 1 calculation rests on multiple layers of speculation. See id. (“Any\\n\\n 2 damages estimate would require evidence to ‘support a just and\\n\\n 3 reasonable estimate of damages,’ and it is difficult to see how\\n\\n 4 appellants would arrive at such an estimate, even with the aid of\\n\\n 5 expert testimony.” (internal quotation marks omitted) (quoting U.S.\\n\\n 6 Football League v. Nat’l Football League, 842 F.2d 1335, 1378 (2d Cir.\\n\\n 7 1988))). No amount of expert testimony can adequately ameliorate the\\n\\n 8 highly speculative nature of IQ’s alleged losses.\\n\\n 9 Duplicative and difficult to apportion damages. The fourth factor,\\n\\n10 duplicative recovery, also cuts against IQ. The damages to which IQ\\n\\n11 lays claim—lost profits from sales it would have made through\\n\\n12 SourceOne‐affiliated websites absent the Defendants’ anticompetitive\\n\\n13 conduct—are exactly the same damages SourceOne’s initial suppliers,\\n\\n14 DDS and Arnold, could have claimed.\\n\\n15 IQ argues that the potential for duplicative recovery has become\\n\\n16 irrelevant to the efficient‐enforcer analysis because any antitrust\\n\\n17 claims DDS and Arnold might have against the Defendants are now\\n\\n18 time‐barred. But we reiterate that the efficient‐enforcer factors are\\n\\n19 concerned with finding the plaintiffs best suited to serve as “private\\n\\n20 attorney[s] general,” AGC, 459 U.S. at 542, and not with identifying\\n\\n21 every plaintiff who might sue. Whether external or practical\\n\\n22 considerations (such as the statute of limitations) may eliminate a\\n\\n23 duplicative damages concern, therefore, is not substantially material.\\n\\f 21 No. 18‐175‐cv\\n\\n 1 The efficient‐enforcer factor asks, in the overall scheme of antitrust\\n\\n 2 enforcement, whether a potential antitrust plaintiff stands within that\\n\\n 3 scheme as someone well positioned to enforce the antitrust laws. The\\n\\n 4 existence of other plaintiffs who could lay claim to precisely the same\\n\\n 5 damages, whether in theory or in actuality, indicates that the would‐\\n\\n 6 be antitrust plaintiff might not be well positioned to vindicate the\\n\\n 7 antitrust laws for the benefit of the public. See id. Indeed, it would be\\n\\n 8 strange and unworkable if new efficient enforcers sprang up simply\\n\\n 9 by operation of the statute of limitations on the other enforcers.\\n\\n10 In sum, we agree with the district court that because IQ is not\\n\\n11 positioned to efficiently enforce the claims that the Defendants\\n\\n12 harmed it by conspiring to boycott SourceOne‐affiliated websites and\\n\\n13 the SDAs, IQ does not have antitrust standing to bring these claims.\\n\\n14 2. The Direct Boycott Allegations\\n\\n15 IQ also alleges that the Defendants injured it by means of a direct\\n\\n16 boycott. IQ claims that the Defendants pressured the manufacturers\\n\\n17 to stop supplying IQ, frightened manufacturers away from supplying\\n\\n18 IQ in the first place, and otherwise disparaged IQ’s business to its\\n\\n19 customers and potential customers.\\n\\n20 We find, with respect to these particular allegations, that IQ is an\\n\\n21 efficient enforcer and thus has antitrust standing to proceed with its\\n\\n22 direct boycott claim against the Defendants.\\n\\f 22 No. 18‐175‐cv\\n\\n 1 Directness of the injury. The direct boycott injury IQ alleges is\\n\\n 2 neither indirect nor derivative. IQ claims that the Defendants directly\\n\\n 3 pressured manufacturers to stop selling their products to IQ, and that\\n\\n 4 the Defendants sought to damage IQ’s business reputation with its\\n\\n 5 customers. Because IQ was the Defendants’ target, these are direct\\n\\n 6 injuries.\\n\\n 7 Sufficiently motivated plaintiff. Second, IQ is the most‐motivated\\n\\n 8 plaintiff with respect to the Defendants’ alleged direct boycott of IQ.\\n\\n 9 See Gatt, 711 F.3d at 78. Unlike the claims of injury from the indirect\\n\\n10 pressure on SourceOne and the SDAs, IQ is the “immediate victim[]”\\n\\n11 of any direct boycott of IQ. AGC, 459 U.S. at 541. It has suffered a\\n\\n12 direct loss of sales. By contrast, none of the plaintiffs best positioned\\n\\n13 to enforce IQ’s claims of indirect boycott are well positioned to\\n\\n14 enforce IQ’s allegations of direct boycott.\\n\\n15 Speculative damages. The damages that flow from the\\n\\n16 Defendants’ alleged direct boycott of IQ would not necessarily be\\n\\n17 speculative—such damages would relate to instances of potentially\\n\\n18 ascertainable business losses. The value of each lost opportunity\\n\\n19 might be calculated based on IQ’s historical sales data without undue\\n\\n20 speculation.\\n\\n21 Duplicative recovery. IQ’s recovery of damages related to the\\n\\n22 direct boycott of IQ would not be duplicative. See Gatt, 711 F.3d at 79–\\n\\f 23 No. 18‐175‐cv\\n\\n 1 80. Unlike the indirect claims, any damages in connection with the\\n\\n 2 Defendants’ direct boycott of IQ could not also be claimed by Arnold\\n\\n 3 and DDS. These injuries are specific to IQ alone.\\n\\n 4 The Defendants argue that IQ fails to state plausible claims for\\n\\n 5 relief for direct injury because “the complaint does not contain factual\\n\\n 6 allegations that Defendants engaged in any joint conduct to boycott\\n\\n 7 IQ.” Appellees’ Br. at 55. This argument fails to recognize that the\\n\\n 8 allegations of direct boycott are part of the Defendants’ vast and\\n\\n 9 multipronged attack on SourceOne’s platforms, the SDAs, the\\n\\n10 distributors, and dental offices. In other words, IQ has not alleged that\\n\\n11 it has suffered an antitrust injury from the Defendants’ direct boycott\\n\\n12 in isolation. Although, as the Defendants note, “complaints about\\n\\n13 price‐cutters are natural—and from the manufacturer’s perspective,\\n\\n14 unavoidable—reactions by distributors to the activities of their\\n\\n15 rivals,” Monsanto Co. v. Spray‐Rite Serv. Corp., 465 U.S. 752, 763 (1984)\\n\\n16 (internal citation and quotation marks omitted), IQ’s complaint here\\n\\n17 is not limited to price cutting. IQ has alleged that the Defendants, as\\n\\n18 part of their elaborate and extensive scheme to force SourceOne and\\n\\n19 associated entities out of business, exerted pressure on some of IQ’s\\n\\n20 suppliers to boycott IQ.\\n\\n21 ***\\n\\f 24 No. 18‐175‐cv\\n\\n 1 In sum, IQ is an efficient enforcer of the antitrust laws solely with\\n\\n 2 respect to IQ’s allegations that it has been directly boycotted by the\\n\\n 3 actions of the Defendants. As to these allegations, we vacate the\\n\\n 4 district court’s judgment and remand for further proceedings on IQ’s\\n\\n 5 claim.\\n\\n 6 II. IQ’S STATE LAW CLAIMS\\n\\n 7 A. New York and New Jersey Antitrust Claims\\n\\n 8 IQ brought parallel antitrust claims under New York’s Donnelly\\n\\n 9 Act, N.Y. Gen. Bus. Law § 340 et seq., and the New Jersey Antitrust\\n\\n10 Act, N.J. Stat. Ann. §§ 56:9‐1 et seq. We decide questions of antitrust\\n\\n11 standing under both New York and New Jersey antitrust law in\\n\\n12 conformity with federal antitrust law. Gatt, 711 F.3d at 81–82 (holding\\n\\n13 that the Donnelly Act should generally be interpreted consistently\\n\\n14 with federal antitrust law (citing X.L.O. Concrete Corp. v. Rivergate\\n\\n15 Corp., 634 N.E.2d 158, 161 (N.Y. 1994))); see also State v. Lawn King, Inc.,\\n\\n16 417 A.2d 1025, 1032 (N.J. 1980) (“[T]he New Jersey act is to be\\n\\n17 construed in harmony with ruling judicial interpretations of\\n\\n18 comparable Federal antitrust statutes and to effectuate, insofar as\\n\\n19 practicable, a uniformity in the laws of those states which enact it.”\\n\\n20 (internal quotation marks omitted)).\\n\\n21 Therefore, our holding with respect to IQ’s state law antitrust\\n\\n22 claims mirrors our federal antitrust holding discussed above. IQ’s\\n\\f 25 No. 18‐175‐cv\\n\\n 1 indirect allegations—the boycott of SourceOne and the SDAs—fail\\n\\n 2 because IQ is not an efficient enforcer. IQ’s state‐law antitrust claims\\n\\n 3 that the Defendants directly boycotted IQ’s business, however, may\\n\\n 4 proceed.\\n\\n 5 B. IQ’s State Law Tort Claims\\n\\n 6 Our final task is to determine the fate of IQ’s remaining state law\\n\\n 7 claims. IQ asserted common‐law claims of tortious interference with\\n\\n 8 prospective business relations, civil conspiracy, and aiding and\\n\\n 9 abetting.\\n\\n10 1. Tortious Interference with Prospective Business\\n11 Relations\\n12 Under New York law, a plaintiff claiming tortious interference\\n\\n13 with prospective business relations must “show the defendant’s\\n\\n14 interference with business relations existing between the plaintiff and\\n\\n15 a third party, either with the sole purpose of harming the plaintiff or\\n\\n16 by means that are dishonest, unfair, or in any other way improper.”\\n\\n17 PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.\\n\\n18 1987) (internal citation and quotation marks omitted), abrogated on\\n\\n19 other grounds by Hannex Corp. v. GMI, Inc., 140 F.3d 194, 206 n.9 (2d\\n\\n20 Cir. 1998). But where, as it does here, “the defendant’s interference is\\n\\n21 intended, at least in part, to advance its own competing interests, the\\n\\n22 claim will fail unless the means employed include criminal or\\n\\n23 fraudulent conduct.” Id.\\n\\f 26 No. 18‐175‐cv\\n\\n 1 The district court dismissed IQ’s tortious interference claim\\n\\n 2 because IQ failed to allege a “viable antitrust claim” and therefore\\n\\n 3 could not plausibly allege that it had suffered criminal or tortious\\n\\n 4 behavior. Second, the district court determined, consistent with the\\n\\n 5 efficient‐enforcer analysis, that IQ had not plausibly alleged that the\\n\\n 6 Defendants’ conduct was the proximate cause of its injuries because\\n\\n 7 IQ had suffered only indirect harm. Finally, with respect to IQ’s\\n\\n 8 allegations that the Defendants directly boycotted its business, the\\n\\n 9 district court found them too “threadbare” to sustain a tortious\\n\\n10 interference claim.\\n\\n11 We agree with the district court that IQ’s claims of tortious\\n\\n12 interference with respect to IQ’s allegations of indirect pressure by the\\n\\n13 Defendants (the boycott of SourceOne and the SDAs) should be\\n\\n14 dismissed because IQ failed to plausibly allege the underlying\\n\\n15 criminal or tortious conduct on which the tortious interference claim\\n\\n16 must be based.\\n\\n17 We disagree with the district court, however, that IQ’s claims of\\n\\n18 direct tortious interference are too scant to survive a motion to\\n\\n19 dismiss. As discussed above, IQ has plausibly alleged that it suffered\\n\\n20 an antitrust injury resulting from the Defendants causing a direct\\n\\n21 boycott of its business. Accordingly, this allegation is sufficient to\\n\\n22 allow IQ’s tortious interference claim to proceed. Therefore, to the\\n\\n23 extent that the district court’s dismissal of IQ’s tortious interference\\n\\f 27 No. 18‐175‐cv\\n\\n 1 claim rested on a misapprehension of the distinction between IQ’s\\n\\n 2 claims of indirect and direct pressure on its business by the\\n\\n 3 Defendants, the judgment of the district court is vacated and\\n\\n 4 remanded to allow the tortious interference claims premised on the\\n\\n 5 direct boycott of IQ to proceed.\\n\\n 6 2. Civil Conspiracy and Aiding and Abetting\\n\\n 7 IQ also asserted claims for state civil conspiracy and aiding and\\n\\n 8 abetting.5 Because IQ’s civil conspiracy and aiding and abetting\\n\\n 9 claims were derivative of its tortious interference claim, the district\\n\\n10 court dismissed these claims as tag‐along claims. Consistent with our\\n\\n11 analysis above, we vacate in part the judgment of the district court as\\n\\n12 to these claims with respect to IQ’s direct boycott allegations.\\n\\n13 ***\\n\\n14 To recap, we conclude that while IQ has alleged an antitrust injury,\\n\\n15 it is not an efficient enforcer with respect to its allegations that the\\n\\n16 Defendants unlawfully caused the boycotts of SourceOne and the\\n\\n17 SDAs. We therefore affirm the judgment of the district court\\n\\n18 dismissing those claims. With respect to IQ’s allegations that the\\n\\n\\n\\n We express no opinion at this stage as to the district court’s finding that\\n 5\\n\\n the existence of an independent tort of civil conspiracy in New Jersey did\\n not raise a question of conflict of laws. IQ has properly pleaded a tortious\\n interference claim from which its claim for civil conspiracy (under the law\\n of either jurisdiction) can be derived.\\n\\f 28 No. 18‐175‐cv\\n\\n 1 Defendants directly brought about a boycott of IQ, however, we find\\n\\n 2 that IQ is best positioned to enforce those antitrust violations.\\n\\n 3 Accordingly, we vacate the judgment and remand the case to the\\n\\n 4 district court on IQ’s allegations of direct boycott only. IQ’s state law\\n\\n 5 antitrust claims and common law tort claims are also vacated and\\n\\n 6 remanded, but only to the extent that they rely on IQ’s allegations that\\n\\n 7 it suffered harm as a result of the direct boycott.\\n\\n 8 CONCLUSION\\n\\n 9 The judgment of the district court is AFFIRMED in part and\\n\\n10 VACATED in part. We REMAND this case to the district court for\\n\\n11 further proceedings consistent with this opinion.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1987,"cells":{"id":{"kind":"number","value":4618936,"string":"4,618,936"},"name":{"kind":"string","value":"Chike Abayomi THOMPSON, AKA Chike Thompson, Petitioner, v. William P. BARR, United States Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Thompson v. Barr"},"decision_date":{"kind":"string","value":"2019-05-13"},"docket_number":{"kind":"string","value":"Docket 17-3494-ag; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kearse, Wesley, Chin\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"17‐3494‐ag\\nThompson v. Barr\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2018\\n\\n (Argued: May 2, 2019 Decided: May 13, 2019)\\n\\n Docket No. 17‐3494‐ag\\n\\n\\n\\n CHIKE ABAYOMI THOMPSON, AKA CHIKE THOMPSON,\\n\\n Petitioner,\\n\\n ‐ against ‐\\n\\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n\\n ON PETITION FOR REVIEW FROM\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\nBefore:\\n KEARSE, WESLEY, and CHIN, Circuit Judges.\\n\\n Petition for review of a decision of the Board of Immigration\\n\\nAppeals dismissing petitionerʹs appeal from a decision of an Immigration Judge\\n\\nordering his removal on the ground that he had been convicted of an aggravated\\n\\nfelony crime of violence. On review, petitioner argues that his conviction for\\n\\fsecond‐degree assault under New York Penal Law § 120.05(1) is not a crime of\\n\\nviolence as defined in 18 U.S.C. § 16(a).\\n\\n PETITION DENIED.\\n\\n\\n\\n Chike Abayomi Thompson, pro se, Brooklyn, New York,\\n for Petitioner.\\n\\n Song E. Park, Senior Litigation Counsel; Joseph H.\\n Hunt, Assistant Attorney General; Cindy S.\\n Ferrier, Assistant Director; Civil Division, United\\n States Department of Justice, Washington, DC, for\\n Respondent.\\n\\n\\n\\nPER CURIAM:\\n\\n Petitioner Chike Abayomi Thompson, a native and citizen of\\n\\nJamaica, seeks review of a decision of the Board of Immigration Appeals (ʺBIAʺ)\\n\\ndismissing his appeal of a decision of an Immigration Judge (ʺIJʺ) ordering his\\n\\nremoval on the ground that he had been convicted of an aggravated felony crime\\n\\nof violence. In re Chike Abayomi Thompson, No. A 089 152 207 (B.I.A. Oct. 12,\\n\\n2017), aff’g No. A 089 152 207 (Immig. Ct. Batavia Mar. 1, 2017).\\n\\n In December 2015, Thompson was convicted of the offense of assault\\n\\nin the second degree in violation of New York Penal Law (ʺNYPLʺ) § 120.05(1).\\n\\nRemoval proceedings were initiated in November 2016, and on March 1, 2017, an\\n\\n\\n 2\\n\\fIJ denied Thompsonʹs motion to terminate the removal proceedings. The IJ also\\n\\nordered Thompsonʹs removal under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground\\n\\nthat his conviction for violating NYPL § 120.05(1) was an aggravated felony\\n\\ncrime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines ʺcrime of\\n\\nviolenceʺ by reference to 18 U.S.C. § 16. On October 12, 2017, the BIA affirmed\\n\\nthe IJʹs decision and dismissed Thompsonʹs appeal.\\n\\n Our jurisdiction to review a final order of removal against an alien,\\n\\nsuch as Thompson, who was ordered removed because of an aggravated felony,\\n\\nis limited to ʺconstitutional claims or questions of law.ʺ 8 U.S.C. § 1252(a)(2)(C),\\n\\n(D). Thompson raises a reviewable question of law: whether a conviction under\\n\\nNYPL § 120.05(1) is an aggravated felony crime of violence under 8 U.S.C.\\n\\n§ 1101(a)(43)(F) and 18 U.S.C. § 16. The BIAʹs decision is the basis for our judicial\\n\\nreview. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the\\n\\nquestion of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).\\n\\n The sole issue before us is whether a conviction under NYPL\\n\\n§ 120.05(1) is a crime of violence as defined in 18 U.S.C. § 16(a).1 We have not yet\\n\\naddressed whether a conviction under New Yorkʹs second‐degree assault statute\\n\\n\\n1 We need not determine whether NYPL § 120.05(1) is a crime of violence under 18 U.S.C.\\n§ 16(b) because the Supreme Court held that § 16(b) is void for vagueness. See Sessions v.\\nDimaya, 138 S. Ct. 1204, 1223 (2018).\\n 3\\n\\fis a crime of violence.2 Section 16(a) defines ʺcrime of violenceʺ as ʺan offense\\n\\nthat has as an element the use, attempted use, or threatened use of physical force\\n\\nagainst the person or property of another.ʺ 18 U.S.C. § 16(a). ʺ[F]orce is defined\\n\\nbroadly as power, violence, or pressure directed against a person or thing.ʺ\\n\\nSantana v. Holder, 714 F.3d 140, 144 (2d Cir. 2013) (internal quotation marks\\n\\nomitted). Furthermore, the ʺuse of physical forceʺ refers to intentional ‐‐ rather\\n\\nthan accidental ‐‐ force and ʺsuggests a category of violent, active crimes.ʺ Leocal\\n\\nv. Ashcroft, 543 U.S. 1, 9‐11 (2004); see also Johnson v. United States, 559 U.S. 133,\\n\\n140 (2010) (holding that 18 U.S.C. § 924(e)ʹs nearly identical ʺphysical forceʺ\\n\\nclause ʺmeans violent force ‐‐ that is, force capable of causing physical pain or\\n\\ninjury to another personʺ).\\n\\n To determine whether a state conviction is a crime of violence, we\\n\\napply the categorical approach and look only to the elements of the state offense\\n\\n‐‐ not the facts underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d\\n\\nCir. 2012); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Under NYPL\\n\\n§ 120.05(1), ʺ[a] person is guilty of assault in the second degree when: . . . [w]ith\\n\\nintent to cause serious physical injury to another person, he causes such injury to\\n\\n\\n2 We recently held that a conviction under Connecticutʹs first‐degree assault statute,\\nConn. Gen. Stat. § 53a‐59(a)(1), is a crime of violence under § 16(a). See Banegas Gomez v. Barr,\\nNo. 15‐3269, 2019 WL 1768914, at *5 (2d Cir. Apr. 23, 2019).\\n 4\\n\\fsuch person or to a third person.ʺ In addition, New York defines ʺ[s]erious\\n\\nphysical injuryʺ as ʺphysical injury which creates a substantial risk of death, or\\n\\nwhich causes death or serious and protracted disfigurement, protracted\\n\\nimpairment of health or protracted loss or impairment of the function of any\\n\\nbodily organ.ʺ NYPL § 10.00(10).\\n\\n Thompsonʹs conviction for second‐degree assault, therefore, meets\\n\\n§ 16(a)ʹs physical force requirement because NYPL § 120.05(1) requires that a\\n\\ndefendant (1) cause a serious physical injury to another (2) with the intent to do\\n\\nso. See NYPL § 120.05(1); Villanueva v. United States, 893 F.3d 123, 130 n.6 (2d Cir.\\n\\n2018) (concluding that intent to cause serious physical injury ʺis necessary to\\n\\nmake [an] offense a ʹviolent felonyʹʺ); see also Banegas Gomez, 2019 WL 1768914, at\\n\\n*5 (holding that a conviction under Conn. Gen. Stat. § 53a‐59(a)(1) constitutes a\\n\\ncrime of violence under § 16(a)); Conn. Gen. Stat. § 53a‐59(a)(1) (ʺA person is\\n\\nguilty of assault in the first degree when: . . . ʺ[w]ith intent to cause serious\\n\\nphysical injury[,] . . . he causes such injury . . . by means of a deadly weapon or\\n\\ndangerous instrument . . . .ʺ).\\n\\n The intent to cause bodily injury necessarily encompasses the use of\\n\\nforce as required under § 16(a). Thus, a person necessarily uses physical force\\n\\nwhen violating the NYPL § 120.05(1). See United States v. Castleman, 572 U.S. 157,\\n\\n 5\\n\\f170 (2014) (ʺIt is impossible to cause bodily injury without applying force in the\\n\\ncommon‐law sense.ʺ); id. at 169 (reasoning that ʺthe knowing or intentional\\n\\ncausation of bodily injury necessarily involves the use of physical forceʺ).\\n\\nMoreover, force that causes ʺserious physical injuryʺ under § 120.05(1) is ʺviolent\\n\\nforce ‐‐ that is, force capable of causing physical pain or injury to another\\n\\nperson,ʺ Johnson, 559 U.S. at 140, because New York defines ʺserious physical\\n\\ninjuryʺ as ʺphysical injury which creates a substantial risk of death, or which\\n\\ncauses death or serious and protracted disfigurement, protracted impairment of\\n\\nhealth or protracted loss or impairment of the function of any bodily organ,ʺ\\n\\nNYPL § 10.00(10).\\n\\n Finally, Thompson argues that NYPL § 120.05(1) is overbroad\\n\\nbecause it applies to conduct that does not involve the use or threatened use of\\n\\nphysical force. For example, Thompson argues that NYPL § 120.05(1) would\\n\\ncover poisoning someone or placing a barrier in front of a car causing an\\n\\naccident. This argument is without merit, however, as we have held that ʺa use\\n\\nof physical force can encompass acts undertaken to cause physical harm, even\\n\\nwhen the harm occurs indirectly (as with poisoning),ʺ Villanueva, 893 F.3d at 130\\n\\n(internal quotation marks omitted), or occurs because the defendant ʺinitiat[ed]\\n\\n. . . a consequence that inflicts injury,ʺ id. at 129, as with placing a physical barrier\\n\\n 6\\n\\fin front of a car causing an accident, see Castleman, 572 U.S. at 170 (ʺ[T]he\\n\\ncommon‐law concept of ʹforceʹ encompasses even its indirect application.ʺ);\\n\\nBanegas Gomez, 2019 WL 1768914, at *4 (ʺ[E]ven if a defendant can commit . . .\\n\\nassault . . . by means of poison, this nonetheless encompasses the requisite forceʺ\\n\\nto constitute a crime of violence under § 16(a).).\\n\\n CONCLUSION\\n\\n Accordingly, the petition for review is DENIED.\\n\\n\\n\\n\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4396189/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"KEARSE"},"judge2":{"kind":"string","value":"WESLEY"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4618936/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Chike Abayomi THOMPSON, AKA Chike Thompson, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3494‐ag\nThompson v. Barr\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n August Term 2018\n\n (Argued: May 2, 2019 Decided: May 13, 2019)\n\n Docket No. 17‐3494‐ag\n\n\n\n CHIKE ABAYOMI THOMPSON, AKA CHIKE THOMPSON,\n\n Petitioner,\n\n ‐ against ‐\n\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,\n\n Respondent.\n\n\n\n ON PETITION FOR REVIEW FROM\n THE BOARD OF IMMIGRATION APPEALS\n\n\nBefore:\n KEARSE, WESLEY, and CHIN, Circuit Judges.\n\n Petition for review of a decision of the Board of Immigration\n\nAppeals dismissing petitionerʹs appeal from a decision of an Immigration Judge\n\nordering his removal on the ground that he had been convicted of an aggravated\n\nfelony crime of violence. On review, petitioner argues that his conviction for\n\fsecond‐degree assault under New York Penal Law § 120.05(1) is not a crime of\n\nviolence as defined in 18 U.S.C. § 16(a).\n\n PETITION DENIED.\n\n\n\n Chike Abayomi Thompson, pro se, Brooklyn, New York,\n for Petitioner.\n\n Song E. Park, Senior Litigation Counsel; Joseph H.\n Hunt, Assistant Attorney General; Cindy S.\n Ferrier, Assistant Director; Civil Division, United\n States Department of Justice, Washington, DC, for\n Respondent.\n\n\n\nPER CURIAM:\n\n Petitioner Chike Abayomi Thompson, a native and citizen of\n\nJamaica, seeks review of a decision of the Board of Immigration Appeals (ʺBIAʺ)\n\ndismissing his appeal of a decision of an Immigration Judge (ʺIJʺ) ordering his\n\nremoval on the ground that he had been convicted of an aggravated felony crime\n\nof violence. In re Chike Abayomi Thompson, No. A 089 152 207 (B.I.A. Oct. 12,\n\n2017), aff’g No. A 089 152 207 (Immig. Ct. Batavia Mar. 1, 2017).\n\n In December 2015, Thompson was convicted of the offense of assault\n\nin the second degree in violation of New York Penal Law (ʺNYPLʺ) § 120.05(1).\n\nRemoval proceedings were initiated in November 2016, and on March 1, 2017, an\n\n\n 2\n\fIJ denied Thompsonʹs motion to terminate the removal proceedings. The IJ also\n\nordered Thompsonʹs removal under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground\n\nthat his conviction for violating NYPL § 120.05(1) was an aggravated felony\n\ncrime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines ʺcrime of\n\nviolenceʺ by reference to 18 U.S.C. § 16. On October 12, 2017, the BIA affirmed\n\nthe IJʹs decision and dismissed Thompsonʹs appeal.\n\n Our jurisdiction to review a final order of removal against an alien,\n\nsuch as Thompson, who was ordered removed because of an aggravated felony,\n\nis limited to ʺconstitutional claims or questions of law.ʺ 8 U.S.C. § 1252(a)(2)(C),\n\n(D). Thompson raises a reviewable question of law: whether a conviction under\n\nNYPL § 120.05(1) is an aggravated felony crime of violence under 8 U.S.C.\n\n§ 1101(a)(43)(F) and 18 U.S.C. § 16. The BIAʹs decision is the basis for our judicial\n\nreview. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the\n\nquestion of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).\n\n The sole issue before us is whether a conviction under NYPL\n\n§ 120.05(1) is a crime of violence as defined in 18 U.S.C. § 16(a).1 We have not yet\n\naddressed whether a conviction under New Yorkʹs second‐degree assault statute\n\n\n1 We need not determine whether NYPL § 120.05(1) is a crime of violence under 18 U.S.C.\n§ 16(b) because the Supreme Court held that § 16(b) is void for vagueness. See Sessions v.\nDimaya, 138 S. Ct. 1204, 1223 (2018).\n 3\n\fis a crime of violence.2 Section 16(a) defines ʺcrime of violenceʺ as ʺan offense\n\nthat has as an element the use, attempted use, or threatened use of physical force\n\nagainst the person or property of another.ʺ 18 U.S.C. § 16(a). ʺ[F]orce is defined\n\nbroadly as power, violence, or pressure directed against a person or thing.ʺ\n\nSantana v. Holder, 714 F.3d 140, 144 (2d Cir. 2013) (internal quotation marks\n\nomitted). Furthermore, the ʺuse of physical forceʺ refers to intentional ‐‐ rather\n\nthan accidental ‐‐ force and ʺsuggests a category of violent, active crimes.ʺ Leocal\n\nv. Ashcroft, 543 U.S. 1, 9‐11 (2004); see also Johnson v. United States, 559 U.S. 133,\n\n140 (2010) (holding that 18 U.S.C. § 924(e)ʹs nearly identical ʺphysical forceʺ\n\nclause ʺmeans violent force ‐‐ that is, force capable of causing physical pain or\n\ninjury to another personʺ).\n\n To determine whether a state conviction is a crime of violence, we\n\napply the categorical approach and look only to the elements of the state offense\n\n‐‐ not the facts underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d\n\nCir. 2012); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Under NYPL\n\n§ 120.05(1), ʺ[a] person is guilty of assault in the second degree when: . . . [w]ith\n\nintent to cause serious physical injury to another person, he causes such injury to\n\n\n2 We recently held that a conviction under Connecticutʹs first‐degree assault statute,\nConn. Gen. Stat. § 53a‐59(a)(1), is a crime of violence under § 16(a). See Banegas Gomez v. Barr,\nNo. 15‐3269, 2019 WL 1768914, at *5 (2d Cir. Apr. 23, 2019).\n 4\n\fsuch person or to a third person.ʺ In addition, New York defines ʺ[s]erious\n\nphysical injuryʺ as ʺphysical injury which creates a substantial risk of death, or\n\nwhich causes death or serious and protracted disfigurement, protracted\n\nimpairment of health or protracted loss or impairment of the function of any\n\nbodily organ.ʺ NYPL § 10.00(10).\n\n Thompsonʹs conviction for second‐degree assault, therefore, meets\n\n§ 16(a)ʹs physical force requirement because NYPL § 120.05(1) requires that a\n\ndefendant (1) cause a serious physical injury to another (2) with the intent to do\n\nso. See NYPL § 120.05(1); Villanueva v. United States, 893 F.3d 123, 130 n.6 (2d Cir.\n\n2018) (concluding that intent to cause serious physical injury ʺis necessary to\n\nmake [an] offense a ʹviolent felonyʹʺ); see also Banegas Gomez, 2019 WL 1768914, at\n\n*5 (holding that a conviction under Conn. Gen. Stat. § 53a‐59(a)(1) constitutes a\n\ncrime of violence under § 16(a)); Conn. Gen. Stat. § 53a‐59(a)(1) (ʺA person is\n\nguilty of assault in the first degree when: . . . ʺ[w]ith intent to cause serious\n\nphysical injury[,] . . . he causes such injury . . . by means of a deadly weapon or\n\ndangerous instrument . . . .ʺ).\n\n The intent to cause bodily injury necessarily encompasses the use of\n\nforce as required under § 16(a). Thus, a person necessarily uses physical force\n\nwhen violating the NYPL § 120.05(1). See United States v. Castleman, 572 U.S. 157,\n\n 5\n\f170 (2014) (ʺIt is impossible to cause bodily injury without applying force in the\n\ncommon‐law sense.ʺ); id. at 169 (reasoning that ʺthe knowing or intentional\n\ncausation of bodily injury necessarily involves the use of physical forceʺ).\n\nMoreover, force that causes ʺserious physical injuryʺ under § 120.05(1) is ʺviolent\n\nforce ‐‐ that is, force capable of causing physical pain or injury to another\n\nperson,ʺ Johnson, 559 U.S. at 140, because New York defines ʺserious physical\n\ninjuryʺ as ʺphysical injury which creates a substantial risk of death, or which\n\ncauses death or serious and protracted disfigurement, protracted impairment of\n\nhealth or protracted loss or impairment of the function of any bodily organ,ʺ\n\nNYPL § 10.00(10).\n\n Finally, Thompson argues that NYPL § 120.05(1) is overbroad\n\nbecause it applies to conduct that does not involve the use or threatened use of\n\nphysical force. For example, Thompson argues that NYPL § 120.05(1) would\n\ncover poisoning someone or placing a barrier in front of a car causing an\n\naccident. This argument is without merit, however, as we have held that ʺa use\n\nof physical force can encompass acts undertaken to cause physical harm, even\n\nwhen the harm occurs indirectly (as with poisoning),ʺ Villanueva, 893 F.3d at 130\n\n(internal quotation marks omitted), or occurs because the defendant ʺinitiat[ed]\n\n. . . a consequence that inflicts injury,ʺ id. at 129, as with placing a physical barrier\n\n 6\n\fin front of a car causing an accident, see Castleman, 572 U.S. at 170 (ʺ[T]he\n\ncommon‐law concept of ʹforceʹ encompasses even its indirect application.ʺ);\n\nBanegas Gomez, 2019 WL 1768914, at *4 (ʺ[E]ven if a defendant can commit . . .\n\nassault . . . by means of poison, this nonetheless encompasses the requisite forceʺ\n\nto constitute a crime of violence under § 16(a).).\n\n CONCLUSION\n\n Accordingly, the petition for review is DENIED.\n\n\n\n\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Chike Abayomi THOMPSON, AKA Chike Thompson, Petitioner, v. William P. BARR, United States Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3494‐ag\\nThompson v. Barr\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n August Term 2018\\n\\n (Argued: May 2, 2019 Decided: May 13, 2019)\\n\\n Docket No. 17‐3494‐ag\\n\\n\\n\\n CHIKE ABAYOMI THOMPSON, AKA CHIKE THOMPSON,\\n\\n Petitioner,\\n\\n ‐ against ‐\\n\\n WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n\\n ON PETITION FOR REVIEW FROM\\n THE BOARD OF IMMIGRATION APPEALS\\n\\n\\nBefore:\\n KEARSE, WESLEY, and CHIN, Circuit Judges.\\n\\n Petition for review of a decision of the Board of Immigration\\n\\nAppeals dismissing petitionerʹs appeal from a decision of an Immigration Judge\\n\\nordering his removal on the ground that he had been convicted of an aggravated\\n\\nfelony crime of violence. On review, petitioner argues that his conviction for\\n\\fsecond‐degree assault under New York Penal Law § 120.05(1) is not a crime of\\n\\nviolence as defined in 18 U.S.C. § 16(a).\\n\\n PETITION DENIED.\\n\\n\\n\\n Chike Abayomi Thompson, pro se, Brooklyn, New York,\\n for Petitioner.\\n\\n Song E. Park, Senior Litigation Counsel; Joseph H.\\n Hunt, Assistant Attorney General; Cindy S.\\n Ferrier, Assistant Director; Civil Division, United\\n States Department of Justice, Washington, DC, for\\n Respondent.\\n\\n\\n\\nPER CURIAM:\\n\\n Petitioner Chike Abayomi Thompson, a native and citizen of\\n\\nJamaica, seeks review of a decision of the Board of Immigration Appeals (ʺBIAʺ)\\n\\ndismissing his appeal of a decision of an Immigration Judge (ʺIJʺ) ordering his\\n\\nremoval on the ground that he had been convicted of an aggravated felony crime\\n\\nof violence. In re Chike Abayomi Thompson, No. A 089 152 207 (B.I.A. Oct. 12,\\n\\n2017), aff’g No. A 089 152 207 (Immig. Ct. Batavia Mar. 1, 2017).\\n\\n In December 2015, Thompson was convicted of the offense of assault\\n\\nin the second degree in violation of New York Penal Law (ʺNYPLʺ) § 120.05(1).\\n\\nRemoval proceedings were initiated in November 2016, and on March 1, 2017, an\\n\\n\\n 2\\n\\fIJ denied Thompsonʹs motion to terminate the removal proceedings. The IJ also\\n\\nordered Thompsonʹs removal under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground\\n\\nthat his conviction for violating NYPL § 120.05(1) was an aggravated felony\\n\\ncrime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines ʺcrime of\\n\\nviolenceʺ by reference to 18 U.S.C. § 16. On October 12, 2017, the BIA affirmed\\n\\nthe IJʹs decision and dismissed Thompsonʹs appeal.\\n\\n Our jurisdiction to review a final order of removal against an alien,\\n\\nsuch as Thompson, who was ordered removed because of an aggravated felony,\\n\\nis limited to ʺconstitutional claims or questions of law.ʺ 8 U.S.C. § 1252(a)(2)(C),\\n\\n(D). Thompson raises a reviewable question of law: whether a conviction under\\n\\nNYPL § 120.05(1) is an aggravated felony crime of violence under 8 U.S.C.\\n\\n§ 1101(a)(43)(F) and 18 U.S.C. § 16. The BIAʹs decision is the basis for our judicial\\n\\nreview. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the\\n\\nquestion of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).\\n\\n The sole issue before us is whether a conviction under NYPL\\n\\n§ 120.05(1) is a crime of violence as defined in 18 U.S.C. § 16(a).1 We have not yet\\n\\naddressed whether a conviction under New Yorkʹs second‐degree assault statute\\n\\n\\n1 We need not determine whether NYPL § 120.05(1) is a crime of violence under 18 U.S.C.\\n§ 16(b) because the Supreme Court held that § 16(b) is void for vagueness. See Sessions v.\\nDimaya, 138 S. Ct. 1204, 1223 (2018).\\n 3\\n\\fis a crime of violence.2 Section 16(a) defines ʺcrime of violenceʺ as ʺan offense\\n\\nthat has as an element the use, attempted use, or threatened use of physical force\\n\\nagainst the person or property of another.ʺ 18 U.S.C. § 16(a). ʺ[F]orce is defined\\n\\nbroadly as power, violence, or pressure directed against a person or thing.ʺ\\n\\nSantana v. Holder, 714 F.3d 140, 144 (2d Cir. 2013) (internal quotation marks\\n\\nomitted). Furthermore, the ʺuse of physical forceʺ refers to intentional ‐‐ rather\\n\\nthan accidental ‐‐ force and ʺsuggests a category of violent, active crimes.ʺ Leocal\\n\\nv. Ashcroft, 543 U.S. 1, 9‐11 (2004); see also Johnson v. United States, 559 U.S. 133,\\n\\n140 (2010) (holding that 18 U.S.C. § 924(e)ʹs nearly identical ʺphysical forceʺ\\n\\nclause ʺmeans violent force ‐‐ that is, force capable of causing physical pain or\\n\\ninjury to another personʺ).\\n\\n To determine whether a state conviction is a crime of violence, we\\n\\napply the categorical approach and look only to the elements of the state offense\\n\\n‐‐ not the facts underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d\\n\\nCir. 2012); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Under NYPL\\n\\n§ 120.05(1), ʺ[a] person is guilty of assault in the second degree when: . . . [w]ith\\n\\nintent to cause serious physical injury to another person, he causes such injury to\\n\\n\\n2 We recently held that a conviction under Connecticutʹs first‐degree assault statute,\\nConn. Gen. Stat. § 53a‐59(a)(1), is a crime of violence under § 16(a). See Banegas Gomez v. Barr,\\nNo. 15‐3269, 2019 WL 1768914, at *5 (2d Cir. Apr. 23, 2019).\\n 4\\n\\fsuch person or to a third person.ʺ In addition, New York defines ʺ[s]erious\\n\\nphysical injuryʺ as ʺphysical injury which creates a substantial risk of death, or\\n\\nwhich causes death or serious and protracted disfigurement, protracted\\n\\nimpairment of health or protracted loss or impairment of the function of any\\n\\nbodily organ.ʺ NYPL § 10.00(10).\\n\\n Thompsonʹs conviction for second‐degree assault, therefore, meets\\n\\n§ 16(a)ʹs physical force requirement because NYPL § 120.05(1) requires that a\\n\\ndefendant (1) cause a serious physical injury to another (2) with the intent to do\\n\\nso. See NYPL § 120.05(1); Villanueva v. United States, 893 F.3d 123, 130 n.6 (2d Cir.\\n\\n2018) (concluding that intent to cause serious physical injury ʺis necessary to\\n\\nmake [an] offense a ʹviolent felonyʹʺ); see also Banegas Gomez, 2019 WL 1768914, at\\n\\n*5 (holding that a conviction under Conn. Gen. Stat. § 53a‐59(a)(1) constitutes a\\n\\ncrime of violence under § 16(a)); Conn. Gen. Stat. § 53a‐59(a)(1) (ʺA person is\\n\\nguilty of assault in the first degree when: . . . ʺ[w]ith intent to cause serious\\n\\nphysical injury[,] . . . he causes such injury . . . by means of a deadly weapon or\\n\\ndangerous instrument . . . .ʺ).\\n\\n The intent to cause bodily injury necessarily encompasses the use of\\n\\nforce as required under § 16(a). Thus, a person necessarily uses physical force\\n\\nwhen violating the NYPL § 120.05(1). See United States v. Castleman, 572 U.S. 157,\\n\\n 5\\n\\f170 (2014) (ʺIt is impossible to cause bodily injury without applying force in the\\n\\ncommon‐law sense.ʺ); id. at 169 (reasoning that ʺthe knowing or intentional\\n\\ncausation of bodily injury necessarily involves the use of physical forceʺ).\\n\\nMoreover, force that causes ʺserious physical injuryʺ under § 120.05(1) is ʺviolent\\n\\nforce ‐‐ that is, force capable of causing physical pain or injury to another\\n\\nperson,ʺ Johnson, 559 U.S. at 140, because New York defines ʺserious physical\\n\\ninjuryʺ as ʺphysical injury which creates a substantial risk of death, or which\\n\\ncauses death or serious and protracted disfigurement, protracted impairment of\\n\\nhealth or protracted loss or impairment of the function of any bodily organ,ʺ\\n\\nNYPL § 10.00(10).\\n\\n Finally, Thompson argues that NYPL § 120.05(1) is overbroad\\n\\nbecause it applies to conduct that does not involve the use or threatened use of\\n\\nphysical force. For example, Thompson argues that NYPL § 120.05(1) would\\n\\ncover poisoning someone or placing a barrier in front of a car causing an\\n\\naccident. This argument is without merit, however, as we have held that ʺa use\\n\\nof physical force can encompass acts undertaken to cause physical harm, even\\n\\nwhen the harm occurs indirectly (as with poisoning),ʺ Villanueva, 893 F.3d at 130\\n\\n(internal quotation marks omitted), or occurs because the defendant ʺinitiat[ed]\\n\\n. . . a consequence that inflicts injury,ʺ id. at 129, as with placing a physical barrier\\n\\n 6\\n\\fin front of a car causing an accident, see Castleman, 572 U.S. at 170 (ʺ[T]he\\n\\ncommon‐law concept of ʹforceʹ encompasses even its indirect application.ʺ);\\n\\nBanegas Gomez, 2019 WL 1768914, at *4 (ʺ[E]ven if a defendant can commit . . .\\n\\nassault . . . by means of poison, this nonetheless encompasses the requisite forceʺ\\n\\nto constitute a crime of violence under § 16(a).).\\n\\n CONCLUSION\\n\\n Accordingly, the petition for review is DENIED.\\n\\n\\n\\n\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1988,"cells":{"id":{"kind":"number","value":4618937,"string":"4,618,937"},"name":{"kind":"string","value":"Alexander A. BENZEMANN, Plaintiff-Appellant, v. HOUSLANGER & ASSOCIATES, PLLC, Todd E. Houslanger, New Century Financial Services, Defendants-Appellees, Citibank N.A., Defendant."},"name_abbreviation":{"kind":"string","value":"Benzemann v. Houslanger & Assocs., PLLC"},"decision_date":{"kind":"string","value":"2019-05-13"},"docket_number":{"kind":"string","value":"18-1162-cv; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Katzmann, Walker, Cabranes\", \"parties\": \"\", \"opinions\": [{\"author\": \"Southern District of New York (Naomi Reice Buchwald, Judge)\", \"type\": \"010combined\", \"text\": \"18‐1162‐cv\\nBenzemann v. Houslanger & Assocs., PLLC\\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2018\\n\\n No. 18‐1162‐cv\\n\\n ALEXANDER A. BENZEMANN,\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n HOUSLANGER & ASSOCIATES, PLLC, TODD E. HOUSLANGER, NEW\\n CENTURY FINANCIAL SERVICES,\\n Defendants‐Appellees,\\n\\n CITIBANK N.A.,\\n Defendant.\\n\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Southern District of New York\\n\\n\\n\\n ARGUED: APRIL 3, 2019\\n DECIDED: MAY 13, 2019\\n\\fBefore: KATZMANN, Chief Judge, WALKER and CABRANES, Circuit\\nJudges.\\n\\n\\n\\n\\n Plaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”)\\nappeals from a judgment of the United States District Court for the\\nSouthern District of New York (Naomi Reice Buchwald, Judge)\\ngranting summary judgment in favor of Defendants‐Appellees\\nHouslanger & Associates, PLLC and Todd E. Houslanger on Plaintiff’s\\nFair Debt Collection Practices Act (“FDCPA”) claim. On appeal, the\\nparties contest a single issue: whether Plaintiff’s FDCPA claim is time‐\\nbarred. We conclude that it is and therefore AFFIRM the District\\nCourt’s March 23, 2018 judgment.\\n\\n\\n\\n\\n ANDREW J. TIAJOLOFF, Tiajoloff & Kelly LLP,\\n New York, NY, for Plaintiff‐Appellant.\\n\\n ROBERT J. BERGSON, Abrams Garfinkel\\n Margolis Bergson, LLP, New York, NY, for\\n Defendants‐Appellees.\\n\\n\\n\\n\\nJOSÉ A. CABRANES, Circuit Judge:\\n\\n In a final attempt to salvage his Fair Debt Collection Practices\\nAct (“FDCPA”) claim against Defendants‐Appellees Houslanger &\\n\\n\\n\\n\\n 2\\n\\fAssociates, PLLC and Todd E. Houslanger (jointly, “Houslanger”),\\nPlaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”) asks us to\\nendorse a novel—and potentially far‐reaching—construction of the\\nFDCPA’s statute of limitations. We decline the invitation.\\n\\n An FDCPA claim must be filed “within one year from the date\\non which the violation occurs.”1 Relying on certain language in our\\ndecision in Benzemann v. Citibank N.A. (“Benzemann I”)2, Plaintiff\\ncontends that an FDCPA “violation” does not “occur[ ]”—and the\\nstatute of limitations does not begin to run—until an individual is\\ninjured and receives “notice of the FDCPA violation.”3 The United\\nStates District Court for the Southern District of New York (Naomi\\nReice Buchwald, Judge) rejected Plaintiff’s reading of Benzemann I,\\nconcluded that his FDCPA claim is time‐barred, and granted summary\\njudgment in Houslanger’s favor. We agree and therefore AFFIRM the\\nDistrict Court’s March 23, 2018 judgment.\\n\\n I. BACKGROUND\\n\\n We draw the facts, which are undisputed or presented in the\\nlight most favorable to Plaintiff, from the summary judgment record.4\\n\\n\\n\\n 1 15 U.S.C. § 1692k(d).\\n 2 806 F.3d 98 (2d Cir. 2015) (“Benzemann I”).\\n 3 Pl.’s Br. 9; see also Benzemann I, 806 F.3d at 103.\\n 4 In re DeRogatis, 904 F.3d 174, 180 (2d Cir. 2018) (“Because the appeals\\nchallenge orders granting summary judgment to defendants, we present here the\\n\\n\\n\\n\\n 3\\n\\f A. The Restraining Notices\\n\\n On April 21, 2008, Houslanger sent a restraining notice\\nreferencing a 2003 judgment against an individual named Andrew\\nBenzemann (“Andrew”) to Citibank, N.A. (“Citibank”), where\\nPlaintiff held an account.5 The notice named Andrew as the judgment\\ndebtor, but it listed Plaintiff’s social security number and address. On\\nApril 30, 2008, Citibank “froze” Plaintiff’s account. After Plaintiff’s\\nattorney notified Houslanger of the error, Houslanger withdrew the\\nrestraining notice, and Citibank lifted the freeze.\\n\\n More than three years later, on December 6, 2011, Houslanger\\n(somewhat inexplicably) sent Citibank a second restraining notice\\ncontaining similar information—i.e., naming Andrew as the judgment\\ndebtor but listing Plaintiff’s social security number and address.\\nPerhaps not surprisingly, Citibank froze Plaintiff’s accounts. On\\nDecember 13, 2011 Plaintiff became aware that he could not gain access\\nto his Citibank accounts. He called Citibank, but the representative\\nwith whom he spoke gave him little information about why his\\naccounts were unavailable. Distressed, Plaintiff contacted his attorney\\nthat same evening. The next day, Plaintiff learned that his accounts\\nhad been frozen pursuant to a restraining notice. By the evening of\\n\\n\\n\\nversion of the facts most favorable to [plaintiff]’s claims, and we draw all reasonable\\ninferences in [his] favor.”).\\n 5 Under New York state law, a “restraining notice serves as a type of\\ninjunction prohibiting the transfer of [a] judgment debtor’s property.” Aspen Indus.\\nv. Marine Midland Bank, 52 N.Y.2d 575, 579 (1981).\\n\\n\\n\\n\\n 4\\n\\fDecember 15, 2011, the freeze had been lifted, and Plaintiff had\\nregained access to his funds.\\n\\n About one year later, on December 14, 2012, Plaintiff\\ncommenced this action, asserting, among others, the FDCPA claim at\\nthe center of this appeal.\\n\\n B. Benzemann I\\n\\n On June 27, 2014, the District Court dismissed Plaintiff’s FDCPA\\nclaim as untimely.6 The District Court concluded that the alleged\\nFDCPA violation occurred, triggering the one‐year statute of\\nlimitations, when Houslanger mailed the restraining notice on\\nDecember 6, 2011. Because Plaintiff commenced this action one year\\nand eight days later, the District Court held that his FDCPA claim is\\ntime‐barred.\\n\\n In Benzemann I, we concluded that the District Court “erred in\\nfinding that the FDCPA violation ‘occurred’ when Houslanger sent the\\nrestraining notice.”7 Instead, we held that “where a debt collector\\nsends an allegedly unlawful restraining notice to a bank, the FDCPA\\n\\n\\n\\n\\n 6 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2014 WL 2933140,\\nat *5–*8 (S.D.N.Y. June 27, 2014).\\n 7 Benzemann I, 806 F.3d at 103.\\n\\n\\n\\n\\n 5\\n\\fviolation does not ‘occur’ for purposes of [the statute of limitations]\\nuntil the bank freezes the debtor’s account.”8\\n\\n Because the record was at that time unclear as to whether\\nCitibank froze Plaintiff’s accounts on December 13 or December 14,\\n2011, we remanded for further proceedings.9 We also directed the\\nDistrict Court to consider, in the event it found that the freeze occurred\\non December 13, 2011, whether the FDCPA’s statute of limitations is\\nsubject to the common‐law “discovery rule.”10\\n\\n C. Additional Factual Development After Remand\\n\\n After limited discovery, it became clear that Citibank froze\\nPlaintiff’s accounts on December 13, 2011.\\n\\n Citibank’s records, produced pursuant to a subpoena, show that\\nCitibank “blocked” Plaintiff’s accounts and an associated debit card at\\n6:14 p.m. on the evening of December 13, 2011. A Citibank employee\\n\\n\\n 8 Id.\\n 9 Though seemingly trivial on its face, as is frequently true in cases of\\ncompeting claims regarding statutes of limitation, the one‐day difference was\\npotentially significant. If Citibank froze Plaintiff’s accounts on December 14, 2011,\\nthen his FDCPA claim, commenced exactly one year later, is necessarily timely. If\\nthe freeze occurred even one day earlier, however, then the statute of limitations\\nmight preclude recovery.\\n 10 As we explain below, under the discovery rule, “a plaintiff’s cause of\\naction accrues when he discovers, or with due diligence should have discovered,\\nthe injury that is the basis of the litigation.” Guilbert v. Gardner, 480 F.3d 140, 149\\n(2d Cir. 2007) (internal quotation marks omitted).\\n\\n\\n\\n\\n 6\\n\\ftestified that after that time, Plaintiff could not withdraw funds, had\\nonly limited ability to deposit funds, and did not have access to the\\naccounts electronically.\\n\\n Plaintiff’s sworn declaration and deposition testimony\\ncorroborate this account. Plaintiff averred that, on December 13, 2011,\\nin the evening, his wife informed him that “she had a problem using\\n[his] Citibank debit card at an [automated teller machine].”11 Plaintiff\\nattempted to gain access to his accounts electronically but was unable\\nto do so because they “were not visible on‐line.”12 At that point, he\\n“concluded that [his] accounts had been frozen because the same thing\\nhad occurred . . . in 2008.”13 This realization was “extremely\\ndistressing,”14 and by approximately 8:00 p.m. that evening, Plaintiff\\n“thought [he] was going to have a heart attack.”15\\n\\n Notwithstanding his distress, Plaintiff acted immediately. He\\ncontacted Citibank by telephone to learn “what happened to [his]\\naccounts.”16 A Citibank employee informed Plaintiff that his accounts\\nhad been blocked and instructed him to call the next day for more\\n\\n\\n 11 J.A. 176.\\n 12 Id. at 177.\\n 13 Id. at 176.\\n 14 Id.\\n 15 Id. at 299.\\n 16 Id. at 176.\\n\\n\\n\\n\\n 7\\n\\finformation. Plaintiff also contacted his attorney, who represented\\nhim when Citibank erroneously froze his account in 2008, because that\\nexperience led him to believe that he “might [have] a legal problem.”17\\n\\n The next day, December 14, 2011, Plaintiff learned that Citibank\\nhad frozen his accounts pursuant to the second erroneous restraining\\nnotice sent by Houslanger on December 6, 2011.\\n\\n D. The District Court’s Memorandum and Order\\n\\n After discovery, Houslanger moved for summary judgment,\\ncontending once again that Plaintiff’s FDCPA claim is time‐barred.\\nThe District Court agreed and granted summary judgment in\\nHouslanger’s favor.18\\n\\n First, the District Court found that Citibank froze Plaintiff’s\\naccounts—i.e., that the alleged FDCPA violation occurred, triggering\\nthe statute of limitations—on December 13, 2011. Because Plaintiff\\nfiled suit on December 14, 2012, one year and one day later, the District\\nCourt held that Plaintiff’s FDCPA claim is untimely.\\n\\n Second, the District Court concluded that it did not need to\\ndetermine whether the discovery rule applies to FDCPA claims as a\\ngeneral matter because the outcome in this case would be the same in\\nany event. The evidence established that Plaintiff learned that Citibank\\n\\n\\n 17 Id. at 302.\\n 18 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2018 WL 1665253,\\nat *5–*7 (S.D.N.Y. Mar. 22, 2018).\\n\\n\\n\\n\\n 8\\n\\ffroze his accounts on December 13, 2011, so that the date of injury and\\nthe date of discovery were the same. Accordingly, Plaintiff’s claim\\nwould be time‐barred even under the discovery rule.\\n\\n This appeal followed.\\n\\n II. DISCUSSION\\n\\n A. Standard of Review\\n\\n We review an award of summary judgment, including on the\\nbasis of “an affirmative defense such as the statute of limitations,”19 de\\nnovo, “construing the evidence in the light most favorable to the\\nnonmoving party and drawing all reasonable inferences and resolving\\nall ambiguities in [his] favor.”20 Summary judgment is appropriate if\\n“there is no genuine dispute as to any material fact and the movant is\\nentitled to judgment as a matter of law.”21\\n\\n B. Interpreting Benzemann I\\n\\n The parties’ dispute is based principally on our construction of\\nthe FDCPA’s statute of limitations in Benzemann I.\\n\\n\\n\\n\\n 19 Giordano v. Mkt. Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).\\n 20Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (internal\\nquotation mark omitted).\\n 21 Fed. R. Civ. P. 56(a).\\n\\n\\n\\n\\n 9\\n\\f As noted above, an FDCPA claim must be brought “within one\\nyear from the date on which the violation occurs.”22 We held in\\nBenzemann I “that where a debt collector sends an allegedly unlawful\\nrestraining notice to a bank, the FDCPA violation does not ‘occur’ for\\npurposes of [the statute of limitations] until the bank freezes the\\ndebtor’s account.”23 Though this conclusion appears straightforward,\\nwe also observed that “the FDCPA violation here did not ‘occur’ until\\nCitibank froze [Plaintiff]’s account because it was only then that he had\\na complete cause of action and notice of the FDCPA violation.”24\\n\\n Plaintiff makes much of this latter passage in Benzemann I. He\\ncontends that, as interpreted in Benzemann I, the FDCPA’s limitations\\nperiod commences only when an individual is injured by unlawful\\nconduct and receives “notice of the FDCPA violation.”25 Here, under\\nPlaintiff’s theory, the statute of limitations did not begin to run until\\nPlaintiff learned that Citibank had frozen his accounts pursuant to the\\nunlawful restraining notice that Houslanger prepared. Plaintiff argues\\nthat, because he did not learn of the restraining notice until December\\n14, 2011, his FDCPA claim, which he commenced exactly one year\\nlater, is timely.\\n\\n\\n\\n\\n 22 15 U.S.C. § 1692k(d).\\n 23 Benzemann I, 806 F.3d at 103.\\n 24 Id. at 103 (emphasis added).\\n 25 Pl.’s Br. 9.\\n\\n\\n\\n\\n 10\\n\\f We conclude that our observation regarding “notice” cannot\\nbear the weight Plaintiff assigns to it. To the extent our decision in\\nBenzemann I created any confusion, we now make clear that an FDCPA\\nviolation occurs, triggering the statute of limitations, when an\\nindividual is injured by unlawful conduct.\\n\\n * * *\\n\\n We reject Plaintiff’s position for several reasons. As an initial\\nmatter, we did not consider in Benzemann I the issue that Plaintiff now\\ncontends we decided. The question before us in Benzemann I was\\nwhether an FDCPA violation can occur, for the purposes of the statute\\nof limitations, before the victim is injured. We concluded that it could\\nnot. In reaching that conclusion, we were not required to—and, we\\nnow make clear, did not—examine whether the triggering of the\\nstatute of limitations also requires “notice of the FDCPA violation.”\\nBecause that issue was not before us, there is no basis for assuming\\nthat we reached it, especially in light of the otherwise clear principle\\nwe expressly described as our holding.26\\n\\n In any event, read as a whole, Benzemann I makes clear that we\\nintended to tether the commencement of the FDCPA’s limitations\\nperiod to the date of injury. We began by reciting the “general\\n\\n\\n See Columbia Broad. Sys., Inc. v. Am. Soc’y of Composers, Authors & Publishers,\\n 26\\n\\n620 F.2d 930, 935 (2d Cir. 1980) (“[A]ppellate courts, endeavoring to rule beyond\\nthe precise holding of a case, normally make that intention unmistakably clear.”);\\nUnited States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring) (“A\\njudge’s power to bind is limited to the issue that is before him.”).\\n\\n\\n\\n\\n 11\\n\\fprinciple of law that a cause of action accrues when conduct that\\ninvades the rights of another has caused injury.”27 We then noted that\\n“[b]efore Citibank froze [Plaintiff]’s account, [he] had suffered no\\ninjury” and therefore “could not have sued Houslanger.”28 To avoid\\nan “anomaly” wherein “the FDCPA’s statute of limitations . . . begin[s]\\nto run before an FDCPA plaintiff [can] file suit,”29 we concluded that\\nan FDCPA violation cannot occur before an individual is injured by\\nunlawful conduct.30 Thus, from the very beginning, our focus in\\nBenzemann I was the date of Plaintiff’s injury.\\n\\n In addition, our instructions to the District Court refute\\nPlaintiff’s interpretation. Having determined that an FDCPA violation\\noccurs for the purposes of the statute of limitations when a bank\\nfreezes a debtor’s account, we directed the District Court to conduct\\nfurther proceedings to ascertain the date of the freeze.31 If we had\\nconcluded that an FDCPA violation could not occur until an\\nindividual received “notice of the FDCPA violation,” as Plaintiff\\nsuggests, this instruction presumably would have been different. We\\nalso directed the District Court to consider whether the discovery rule\\n\\n\\n 27 Benzemann I, 806 F.3d at 101 (internal quotation marks and brackets\\nomitted).\\n 28 Id.\\n 29 Id. at 101, 102.\\n 30 Id. at 103.\\n 31 Id.\\n\\n\\n\\n\\n 12\\n\\fapplies to FDCPA claims only if it determined that Citibank froze\\nPlaintiff’s accounts on December 13, 2011.32 This instruction is\\nconsistent with the conclusion that Plaintiff’s knowledge—or lack\\nthereof—is irrelevant in determining when an alleged FDCPA\\nviolation occurs.\\n\\n Accordingly, a careful reading makes clear that we did not\\nintend in Benzemann I to expand the FDCPA’s statute of limitations by\\nrequiring that individuals receive “notice of the FDCPA violation.”\\n\\n * * *\\n\\n Aside from the fact that Benzemann I simply does not say what\\nPlaintiff would like, there are other reasons to reject Plaintiff’s\\nproposed notice requirement. First, the statutory text provides no\\nsupport for such a rule. We have observed that statutes of limitation\\n“inevitably reflect[ ] a value judgment concerning the point at which\\nthe interests in favor of protecting valid claims are outweighed by the\\ninterests in prohibiting the prosecution of stale ones.”33 Thus, “strict\\nadherence to limitation periods is the best guarantee of evenhanded\\nadministration of the law.”34 Here, strict adherence requires little\\nimagination, since the statutory text is unambiguous: FDCPA claims\\nmust be brought “within one year from the date on which the violation\\n\\n 32 Id. at 103 n.2.\\n 33Carey v. Int’l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d\\nCir. 1999) (internal quotation marks omitted).\\n 34 Id. (internal quotation marks omitted).\\n\\n\\n\\n\\n 13\\n\\foccurs.”35 A “violation”—“[a]n infraction or breach of the law”36—\\n“occurs” when it “take[s] place.”37 It is one thing to conclude, as we\\ndid in Benzemann I, that a breach of the law might not take place until\\nunlawful conduct causes an injury. But it is quite another to suggest\\nthat a breach of the law does not take place until a victim receives\\nnotice of the statutory violation. On Plaintiff’s theory, if an individual\\nnever received such notice, a breach of the law never took place—no\\nmatter that the individual was in fact injured by unlawful conduct.\\nThis novel interpretation might help Plaintiff evade the FDCPA’s\\nstatute of limitations, but it appears to us unsupported by the common\\nunderstanding of the words “violation” and “occur.”\\n\\n Second, unlike the rule we adopted in Benzemann I and restate\\ntoday, Plaintiff’s proposal is not easily administrable. Plaintiff makes\\nno attempt to define the contours of what constitutes sufficient “notice\\nof the FDCPA violation” other than to suggest that, here, it means\\n“notice of [a] [r]estraining [n]otice that violates the FDCPA.”38 But\\neven this limitation provides only so much help. A restraining notice\\nmight violate the FDCPA for any number of reasons. Where, as here,\\na fundamental error is evident on the face of the restraining notice, the\\nnotice might itself provide “notice of the FDCPA violation.” That will\\nnot always be the case, however. Yet Plaintiff does not identify a way\\n\\n 35 15 U.S.C. § 1692k(d).\\n 36 Violation, BLACK’S LAW DICTIONARY (10th ed. 2014).\\n 37 Occur, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1561 (1981).\\n 38 Pl.’s Br. 6.\\n\\n\\n\\n\\n 14\\n\\fto distinguish between this straightforward case and those instances\\nin which the type of “notice” necessary to identify “the FDCPA\\nviolation” will be far less self‐evident. Were we to adopt a notice\\nrequirement, the question of how much notice is enough would, we\\nthink, bedevil litigants and courts for some time to come.\\n\\n Finally, and relatedly, Plaintiff’s proposal undermines the\\npolicies that statutes of limitation serve. Among other things,\\nlimitations periods encourage putative plaintiffs to diligently\\nprosecute their claims39 and “promote justice by preventing surprises\\nthrough plaintiffs’ revival of claims that have been allowed to slumber\\nuntil evidence has been lost, memories have faded, and witnesses have\\ndisappeared.”40 Plaintiff’s rule, which incents strategic delay—not to\\n\\n 39 See Statute of Limitations, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The\\npurpose of [statutes of limitation] is to require diligent prosecution of known claims\\n. . . .”); see also, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352 (1983)\\n(“Limitations periods are intended to . . . prevent plaintiffs from sleeping on their\\nrights.”); United States v. Wiley, 78 U.S. 508, 513–14 (1870) (Statutes of limitation “are\\nenacted upon the presumption that one having a well‐founded claim will not delay\\nenforcing it beyond a reasonable time, if he has the power to sue.”).\\n 40CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014) (internal quotation marks and\\nbrackets omitted). See also, e.g., Bd. of Regents v. Tomanio, 446 U.S. 478, 487 (1980)\\n(“[T]here comes a point at which the delay of a plaintiff in asserting a claim is\\nsufficiently likely either to impair the accuracy of the fact‐finding process or to\\nupset settled expectations that a substantive claim will be barred without respect to\\nwhether it is meritorious.”); Bell v. Morrison, 26 U.S. 351, 360 (1828) (Statutes of\\nlimitation are “wise and beneficial law[s]” that “afford security against stale\\ndemands, after the true state of the transaction may have been forgotten, or be\\nincapable of explanation.”); cf. Oliver W. Holmes, Jr., The Path of the Law, 10 HARV.\\nL. REV. 457, 476–77 (1897) (“[T]he foundation of the acquisition of rights by lapse of\\ntime is to be looked for in the position of the person who gains them, not in that of\\n\\n\\n\\n\\n 15\\n\\fmention endless litigation concerning the sufficiency of notice—does\\njust the opposite.\\n\\n * * *\\n\\n For these reasons, we conclude that an FDCPA violation occurs\\nfor the purposes of the one‐year statute of limitations when an\\nindividual is injured by unlawful conduct. Here, Plaintiff was injured\\non December 13, 2011, when Citibank froze his accounts. Because\\nPlaintiff filed suit one year and one day later, his FDCPA claim is time‐\\nbarred.\\n\\n C. The “Discovery Rule”\\n\\n Plaintiff also contends that his claim is timely pursuant to the\\ncommon‐law “discovery rule.” We disagree.\\n\\n Under the discovery rule, “a plaintiff’s cause of action accrues\\nwhen he discovers, or with due diligence should have discovered, the\\ninjury that is the basis of the litigation.”41 We have not had occasion to\\ndecide whether the discovery rule applies to FDCPA claims and need\\n\\n\\n\\n\\nthe loser. . . . A thing which you have enjoyed and used as your own for a long time,\\nwhether property or an opinion, takes root in your being and cannot be torn away\\nwithout your resenting the act and trying to defend yourself, however you came by\\nit.”).\\n 41 Guilbert, 480 F.3d at 149 (internal quotation marks omitted).\\n\\n\\n\\n\\n 16\\n\\fnot do so here because, as the District Court recognized, Plaintiff’s\\nclaim would be time‐barred in any event.42\\n\\n The Supreme Court has made clear that, under the discovery\\nrule, “discovery of the injury, not discovery of the other elements of a\\nclaim, is what starts the clock.”43 This standard is plainly satisfied here.\\nBy Plaintiff’s own account, he discovered the injury—that Citibank\\nhad frozen his accounts—on the same day that it occurred: December\\n13, 2011. Accordingly, Plaintiff’s FDCPA claim is time‐barred even\\nunder the discovery rule.44\\n\\n\\n 42 In concluding that the FDCPA’s text does not support Plaintiff’s proposed\\nnotice requirement, we do not mean to preclude the possibility that the FDCPA’s\\nstatute of limitations is subject to the discovery rule. Indeed, we have previously\\nobserved that “federal court[s] generally employ[ ] the ‘discovery rule.’” Id.\\n(emphasis added). There might be reason to question this presumption. See, e.g.,\\nTRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) (noting that, though “lower federal\\ncourts generally apply a discovery accrual rule when a statute is silent on the issue,”\\nthe Supreme Court has “not adopted that position as [its] own” (internal quotation\\nmarks omitted)). But we need not reach this issue here. Although we interpret the\\nwords “violation” and “occur” as a signal that the FDCPA’s limitations period\\ngenerally commences when an individual is injured by unlawful conduct, we do\\nnot discount the possibility that the discovery rule or, in appropriate circumstances,\\nanother doctrine could alter or extend the limitations period. In addition, we note\\nthat the Supreme Court has recently granted certiorari in an action that raises this\\nquestion and might soon conclusively resolve the issue. See Rotkiske v. Klemm, 890\\nF.3d 422 (3d Cir. 2018), cert. granted, 139 S. Ct. 1259 (Feb. 25, 2019) (No. 18‐328).\\n 43 Rotella v. Wood, 528 U.S. 549, 555 (2000) (emphasis added).\\n 44 We have previously described the discovery rule as applying to both the\\ncomplained‐of injury and its cause. See A.Q.C. ex rel. Castillo v. United States, 656\\nF.3d 135, 140 (2d Cir. 2011) (“The diligence‐discovery rule sets the accrual date at\\nthe time when, with reasonable diligence, the plaintiff has or . . . should have\\n\\n\\n\\n\\n 17\\n\\f D. “Equitable Tolling”\\n\\n Finally, Plaintiff contends that his claim is timely under the\\ndoctrine of “equitable tolling.” Once again, we disagree.\\n\\n As an initial matter, Plaintiff failed to raise this argument before\\nthe District Court.45 “[A]n appellate court [generally] will not consider\\nan issue raised for the first time on appeal.”46 Although we can exercise\\nour discretion to do so “where necessary to avoid a manifest\\ninjustice,”47 Plaintiff has not attempted to meet this standard.\\n\\n\\n\\n\\ndiscovered the critical facts of both his injury and its cause.” (internal quotation\\nmarks omitted; emphasis added)). We need not decide today whether we can\\nreconcile our description of the discovery rule in cases such as A.Q.C. with the\\nlimitation the Supreme Court expressed in Rotella, which we appeared to adopt in\\nGuilbert. We agree with the District Court that, to the extent Plaintiff did not know\\nthe precise cause of his injury on December 13, 2011, he possessed enough\\ninformation to strongly suspect that it had been caused by conduct that was legally\\nactionable. See Benzemann, 2018 WL 1665253, at *6–*7 (noting Plaintiff’s deposition\\ntestimony that he contacted his attorney shortly after learning his accounts were\\nfrozen because he concluded, in light of his experience in 2008, that he “might\\n[have] a legal problem” (internal quotation marks omitted)).\\n 45 We reject Plaintiff’s contention that he implicitly raised the issue during\\noral argument before the District Court on the motion to dismiss that was the\\nsubject of our decision in Benzemann I. Had Plaintiff in fact intended to raise\\nequitable tolling more than three years ago, it is highly unlikely that he would have\\nfailed to do so again in opposing Houslanger’s motion for summary judgment.\\n 46Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018) (internal\\nquotation mark omitted).\\n 47 Id. at 198–99.\\n\\n\\n\\n\\n 18\\n\\f In any event, Plaintiff’s argument fails on the merits. As a\\ngeneral matter, equitable tolling “pauses the running of, or tolls, a\\nstatute of limitations when a litigant has pursued his rights diligently\\nbut some extraordinary circumstance prevents him from bringing a\\ntimely action.”48 Assuming, for the sake of argument only, that the\\ndoctrine of equitable tolling applies to the FDCPA, there is ample\\nreason to conclude that Plaintiff has failed to satisfy its requirements.\\n\\n Plaintiff discovered that Citibank froze his accounts on\\nDecember 13, 2011 and began investigating the incident that evening.\\nBy the next day, Plaintiff had gathered all the information necessary to\\nbring an FDCPA claim. Yet, for reasons known only to Plaintiff and\\nhis counsel, Plaintiff waited just over one year to commence this\\naction. In the circumstances, it would be difficult indeed to describe\\nPlaintiff’s pursuit of his rights as “diligent.” Nor, in light of Plaintiff’s\\nability to ascertain the necessary information in less than twenty‐four\\nhours, does it appear that an extraordinary circumstance prevented\\nhim from commencing this action in a timely fashion.\\n\\n III. CONCLUSION\\n\\n To summarize, we hold that:\\n\\n (1) An FDCPA violation “occurs,” for the purposes of the\\n FDCPA’s one‐year statute of limitations, when an individual\\n is injured by the alleged unlawful conduct. Because Plaintiff\\n filed suit one year and one day after Citibank froze his\\n\\n 48 CTS Corp., 573 U.S. at 9 (internal quotation marks omitted).\\n\\n\\n\\n\\n 19\\n\\f accounts—the injury caused by the claimed FDCPA\\n violation—his claim is time‐barred.\\n\\n (2) Even if the “discovery rule” applies to FDCPA claims as a\\n general matter—an issue we do not decide—Plaintiff’s claim\\n is time‐barred because he discovered his injury on the same\\n day that it occurred.\\n\\n (3) Even if Plaintiff had properly raised the doctrine of\\n “equitable tolling” before the District Court, it would not\\n salvage his claim because he did not diligently pursue his\\n rights, and no extraordinary circumstance precluded him\\n from timely commencing this action.\\n\\n For the foregoing reasons, we AFFIRM the District Court’s\\nMarch 23, 2018 judgment.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4396190/\", \"author_raw\": \"Southern District of New York (Naomi Reice Buchwald, Judge)\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"WALKER"},"judge3":{"kind":"string","value":"CABRANES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4618937/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Alexander A. BENZEMANN, Plaintiff-Appellant, v. HOUSLANGER & ASSOCIATES, PLLC, Todd E. Houslanger, New Century Financial Services, Defendants-Appellees, Citibank N.A., Defendant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐1162‐cv\nBenzemann v. Houslanger & Assocs., PLLC\n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n\n\n AUGUST TERM 2018\n\n No. 18‐1162‐cv\n\n ALEXANDER A. BENZEMANN,\n Plaintiff‐Appellant,\n\n v.\n\n HOUSLANGER & ASSOCIATES, PLLC, TODD E. HOUSLANGER, NEW\n CENTURY FINANCIAL SERVICES,\n Defendants‐Appellees,\n\n CITIBANK N.A.,\n Defendant.\n\n\n\n\n On Appeal from the United States District Court\n for the Southern District of New York\n\n\n\n ARGUED: APRIL 3, 2019\n DECIDED: MAY 13, 2019\n\fBefore: KATZMANN, Chief Judge, WALKER and CABRANES, Circuit\nJudges.\n\n\n\n\n Plaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”)\nappeals from a judgment of the United States District Court for the\nSouthern District of New York (Naomi Reice Buchwald, Judge)\ngranting summary judgment in favor of Defendants‐Appellees\nHouslanger & Associates, PLLC and Todd E. Houslanger on Plaintiff’s\nFair Debt Collection Practices Act (“FDCPA”) claim. On appeal, the\nparties contest a single issue: whether Plaintiff’s FDCPA claim is time‐\nbarred. We conclude that it is and therefore AFFIRM the District\nCourt’s March 23, 2018 judgment.\n\n\n\n\n ANDREW J. TIAJOLOFF, Tiajoloff & Kelly LLP,\n New York, NY, for Plaintiff‐Appellant.\n\n ROBERT J. BERGSON, Abrams Garfinkel\n Margolis Bergson, LLP, New York, NY, for\n Defendants‐Appellees.\n\n\n\n\nJOSÉ A. CABRANES, Circuit Judge:\n\n In a final attempt to salvage his Fair Debt Collection Practices\nAct (“FDCPA”) claim against Defendants‐Appellees Houslanger &\n\n\n\n\n 2\n\fAssociates, PLLC and Todd E. Houslanger (jointly, “Houslanger”),\nPlaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”) asks us to\nendorse a novel—and potentially far‐reaching—construction of the\nFDCPA’s statute of limitations. We decline the invitation.\n\n An FDCPA claim must be filed “within one year from the date\non which the violation occurs.”1 Relying on certain language in our\ndecision in Benzemann v. Citibank N.A. (“Benzemann I”)2, Plaintiff\ncontends that an FDCPA “violation” does not “occur[ ]”—and the\nstatute of limitations does not begin to run—until an individual is\ninjured and receives “notice of the FDCPA violation.”3 The United\nStates District Court for the Southern District of New York (Naomi\nReice Buchwald, Judge) rejected Plaintiff’s reading of Benzemann I,\nconcluded that his FDCPA claim is time‐barred, and granted summary\njudgment in Houslanger’s favor. We agree and therefore AFFIRM the\nDistrict Court’s March 23, 2018 judgment.\n\n I. BACKGROUND\n\n We draw the facts, which are undisputed or presented in the\nlight most favorable to Plaintiff, from the summary judgment record.4\n\n\n\n 1 15 U.S.C. § 1692k(d).\n 2 806 F.3d 98 (2d Cir. 2015) (“Benzemann I”).\n 3 Pl.’s Br. 9; see also Benzemann I, 806 F.3d at 103.\n 4 In re DeRogatis, 904 F.3d 174, 180 (2d Cir. 2018) (“Because the appeals\nchallenge orders granting summary judgment to defendants, we present here the\n\n\n\n\n 3\n\f A. The Restraining Notices\n\n On April 21, 2008, Houslanger sent a restraining notice\nreferencing a 2003 judgment against an individual named Andrew\nBenzemann (“Andrew”) to Citibank, N.A. (“Citibank”), where\nPlaintiff held an account.5 The notice named Andrew as the judgment\ndebtor, but it listed Plaintiff’s social security number and address. On\nApril 30, 2008, Citibank “froze” Plaintiff’s account. After Plaintiff’s\nattorney notified Houslanger of the error, Houslanger withdrew the\nrestraining notice, and Citibank lifted the freeze.\n\n More than three years later, on December 6, 2011, Houslanger\n(somewhat inexplicably) sent Citibank a second restraining notice\ncontaining similar information—i.e., naming Andrew as the judgment\ndebtor but listing Plaintiff’s social security number and address.\nPerhaps not surprisingly, Citibank froze Plaintiff’s accounts. On\nDecember 13, 2011 Plaintiff became aware that he could not gain access\nto his Citibank accounts. He called Citibank, but the representative\nwith whom he spoke gave him little information about why his\naccounts were unavailable. Distressed, Plaintiff contacted his attorney\nthat same evening. The next day, Plaintiff learned that his accounts\nhad been frozen pursuant to a restraining notice. By the evening of\n\n\n\nversion of the facts most favorable to [plaintiff]’s claims, and we draw all reasonable\ninferences in [his] favor.”).\n 5 Under New York state law, a “restraining notice serves as a type of\ninjunction prohibiting the transfer of [a] judgment debtor’s property.” Aspen Indus.\nv. Marine Midland Bank, 52 N.Y.2d 575, 579 (1981).\n\n\n\n\n 4\n\fDecember 15, 2011, the freeze had been lifted, and Plaintiff had\nregained access to his funds.\n\n About one year later, on December 14, 2012, Plaintiff\ncommenced this action, asserting, among others, the FDCPA claim at\nthe center of this appeal.\n\n B. Benzemann I\n\n On June 27, 2014, the District Court dismissed Plaintiff’s FDCPA\nclaim as untimely.6 The District Court concluded that the alleged\nFDCPA violation occurred, triggering the one‐year statute of\nlimitations, when Houslanger mailed the restraining notice on\nDecember 6, 2011. Because Plaintiff commenced this action one year\nand eight days later, the District Court held that his FDCPA claim is\ntime‐barred.\n\n In Benzemann I, we concluded that the District Court “erred in\nfinding that the FDCPA violation ‘occurred’ when Houslanger sent the\nrestraining notice.”7 Instead, we held that “where a debt collector\nsends an allegedly unlawful restraining notice to a bank, the FDCPA\n\n\n\n\n 6 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2014 WL 2933140,\nat *5–*8 (S.D.N.Y. June 27, 2014).\n 7 Benzemann I, 806 F.3d at 103.\n\n\n\n\n 5\n\fviolation does not ‘occur’ for purposes of [the statute of limitations]\nuntil the bank freezes the debtor’s account.”8\n\n Because the record was at that time unclear as to whether\nCitibank froze Plaintiff’s accounts on December 13 or December 14,\n2011, we remanded for further proceedings.9 We also directed the\nDistrict Court to consider, in the event it found that the freeze occurred\non December 13, 2011, whether the FDCPA’s statute of limitations is\nsubject to the common‐law “discovery rule.”10\n\n C. Additional Factual Development After Remand\n\n After limited discovery, it became clear that Citibank froze\nPlaintiff’s accounts on December 13, 2011.\n\n Citibank’s records, produced pursuant to a subpoena, show that\nCitibank “blocked” Plaintiff’s accounts and an associated debit card at\n6:14 p.m. on the evening of December 13, 2011. A Citibank employee\n\n\n 8 Id.\n 9 Though seemingly trivial on its face, as is frequently true in cases of\ncompeting claims regarding statutes of limitation, the one‐day difference was\npotentially significant. If Citibank froze Plaintiff’s accounts on December 14, 2011,\nthen his FDCPA claim, commenced exactly one year later, is necessarily timely. If\nthe freeze occurred even one day earlier, however, then the statute of limitations\nmight preclude recovery.\n 10 As we explain below, under the discovery rule, “a plaintiff’s cause of\naction accrues when he discovers, or with due diligence should have discovered,\nthe injury that is the basis of the litigation.” Guilbert v. Gardner, 480 F.3d 140, 149\n(2d Cir. 2007) (internal quotation marks omitted).\n\n\n\n\n 6\n\ftestified that after that time, Plaintiff could not withdraw funds, had\nonly limited ability to deposit funds, and did not have access to the\naccounts electronically.\n\n Plaintiff’s sworn declaration and deposition testimony\ncorroborate this account. Plaintiff averred that, on December 13, 2011,\nin the evening, his wife informed him that “she had a problem using\n[his] Citibank debit card at an [automated teller machine].”11 Plaintiff\nattempted to gain access to his accounts electronically but was unable\nto do so because they “were not visible on‐line.”12 At that point, he\n“concluded that [his] accounts had been frozen because the same thing\nhad occurred . . . in 2008.”13 This realization was “extremely\ndistressing,”14 and by approximately 8:00 p.m. that evening, Plaintiff\n“thought [he] was going to have a heart attack.”15\n\n Notwithstanding his distress, Plaintiff acted immediately. He\ncontacted Citibank by telephone to learn “what happened to [his]\naccounts.”16 A Citibank employee informed Plaintiff that his accounts\nhad been blocked and instructed him to call the next day for more\n\n\n 11 J.A. 176.\n 12 Id. at 177.\n 13 Id. at 176.\n 14 Id.\n 15 Id. at 299.\n 16 Id. at 176.\n\n\n\n\n 7\n\finformation. Plaintiff also contacted his attorney, who represented\nhim when Citibank erroneously froze his account in 2008, because that\nexperience led him to believe that he “might [have] a legal problem.”17\n\n The next day, December 14, 2011, Plaintiff learned that Citibank\nhad frozen his accounts pursuant to the second erroneous restraining\nnotice sent by Houslanger on December 6, 2011.\n\n D. The District Court’s Memorandum and Order\n\n After discovery, Houslanger moved for summary judgment,\ncontending once again that Plaintiff’s FDCPA claim is time‐barred.\nThe District Court agreed and granted summary judgment in\nHouslanger’s favor.18\n\n First, the District Court found that Citibank froze Plaintiff’s\naccounts—i.e., that the alleged FDCPA violation occurred, triggering\nthe statute of limitations—on December 13, 2011. Because Plaintiff\nfiled suit on December 14, 2012, one year and one day later, the District\nCourt held that Plaintiff’s FDCPA claim is untimely.\n\n Second, the District Court concluded that it did not need to\ndetermine whether the discovery rule applies to FDCPA claims as a\ngeneral matter because the outcome in this case would be the same in\nany event. The evidence established that Plaintiff learned that Citibank\n\n\n 17 Id. at 302.\n 18 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2018 WL 1665253,\nat *5–*7 (S.D.N.Y. Mar. 22, 2018).\n\n\n\n\n 8\n\ffroze his accounts on December 13, 2011, so that the date of injury and\nthe date of discovery were the same. Accordingly, Plaintiff’s claim\nwould be time‐barred even under the discovery rule.\n\n This appeal followed.\n\n II. DISCUSSION\n\n A. Standard of Review\n\n We review an award of summary judgment, including on the\nbasis of “an affirmative defense such as the statute of limitations,”19 de\nnovo, “construing the evidence in the light most favorable to the\nnonmoving party and drawing all reasonable inferences and resolving\nall ambiguities in [his] favor.”20 Summary judgment is appropriate if\n“there is no genuine dispute as to any material fact and the movant is\nentitled to judgment as a matter of law.”21\n\n B. Interpreting Benzemann I\n\n The parties’ dispute is based principally on our construction of\nthe FDCPA’s statute of limitations in Benzemann I.\n\n\n\n\n 19 Giordano v. Mkt. Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).\n 20Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (internal\nquotation mark omitted).\n 21 Fed. R. Civ. P. 56(a).\n\n\n\n\n 9\n\f As noted above, an FDCPA claim must be brought “within one\nyear from the date on which the violation occurs.”22 We held in\nBenzemann I “that where a debt collector sends an allegedly unlawful\nrestraining notice to a bank, the FDCPA violation does not ‘occur’ for\npurposes of [the statute of limitations] until the bank freezes the\ndebtor’s account.”23 Though this conclusion appears straightforward,\nwe also observed that “the FDCPA violation here did not ‘occur’ until\nCitibank froze [Plaintiff]’s account because it was only then that he had\na complete cause of action and notice of the FDCPA violation.”24\n\n Plaintiff makes much of this latter passage in Benzemann I. He\ncontends that, as interpreted in Benzemann I, the FDCPA’s limitations\nperiod commences only when an individual is injured by unlawful\nconduct and receives “notice of the FDCPA violation.”25 Here, under\nPlaintiff’s theory, the statute of limitations did not begin to run until\nPlaintiff learned that Citibank had frozen his accounts pursuant to the\nunlawful restraining notice that Houslanger prepared. Plaintiff argues\nthat, because he did not learn of the restraining notice until December\n14, 2011, his FDCPA claim, which he commenced exactly one year\nlater, is timely.\n\n\n\n\n 22 15 U.S.C. § 1692k(d).\n 23 Benzemann I, 806 F.3d at 103.\n 24 Id. at 103 (emphasis added).\n 25 Pl.’s Br. 9.\n\n\n\n\n 10\n\f We conclude that our observation regarding “notice” cannot\nbear the weight Plaintiff assigns to it. To the extent our decision in\nBenzemann I created any confusion, we now make clear that an FDCPA\nviolation occurs, triggering the statute of limitations, when an\nindividual is injured by unlawful conduct.\n\n * * *\n\n We reject Plaintiff’s position for several reasons. As an initial\nmatter, we did not consider in Benzemann I the issue that Plaintiff now\ncontends we decided. The question before us in Benzemann I was\nwhether an FDCPA violation can occur, for the purposes of the statute\nof limitations, before the victim is injured. We concluded that it could\nnot. In reaching that conclusion, we were not required to—and, we\nnow make clear, did not—examine whether the triggering of the\nstatute of limitations also requires “notice of the FDCPA violation.”\nBecause that issue was not before us, there is no basis for assuming\nthat we reached it, especially in light of the otherwise clear principle\nwe expressly described as our holding.26\n\n In any event, read as a whole, Benzemann I makes clear that we\nintended to tether the commencement of the FDCPA’s limitations\nperiod to the date of injury. We began by reciting the “general\n\n\n See Columbia Broad. Sys., Inc. v. Am. Soc’y of Composers, Authors & Publishers,\n 26\n\n620 F.2d 930, 935 (2d Cir. 1980) (“[A]ppellate courts, endeavoring to rule beyond\nthe precise holding of a case, normally make that intention unmistakably clear.”);\nUnited States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring) (“A\njudge’s power to bind is limited to the issue that is before him.”).\n\n\n\n\n 11\n\fprinciple of law that a cause of action accrues when conduct that\ninvades the rights of another has caused injury.”27 We then noted that\n“[b]efore Citibank froze [Plaintiff]’s account, [he] had suffered no\ninjury” and therefore “could not have sued Houslanger.”28 To avoid\nan “anomaly” wherein “the FDCPA’s statute of limitations . . . begin[s]\nto run before an FDCPA plaintiff [can] file suit,”29 we concluded that\nan FDCPA violation cannot occur before an individual is injured by\nunlawful conduct.30 Thus, from the very beginning, our focus in\nBenzemann I was the date of Plaintiff’s injury.\n\n In addition, our instructions to the District Court refute\nPlaintiff’s interpretation. Having determined that an FDCPA violation\noccurs for the purposes of the statute of limitations when a bank\nfreezes a debtor’s account, we directed the District Court to conduct\nfurther proceedings to ascertain the date of the freeze.31 If we had\nconcluded that an FDCPA violation could not occur until an\nindividual received “notice of the FDCPA violation,” as Plaintiff\nsuggests, this instruction presumably would have been different. We\nalso directed the District Court to consider whether the discovery rule\n\n\n 27 Benzemann I, 806 F.3d at 101 (internal quotation marks and brackets\nomitted).\n 28 Id.\n 29 Id. at 101, 102.\n 30 Id. at 103.\n 31 Id.\n\n\n\n\n 12\n\fapplies to FDCPA claims only if it determined that Citibank froze\nPlaintiff’s accounts on December 13, 2011.32 This instruction is\nconsistent with the conclusion that Plaintiff’s knowledge—or lack\nthereof—is irrelevant in determining when an alleged FDCPA\nviolation occurs.\n\n Accordingly, a careful reading makes clear that we did not\nintend in Benzemann I to expand the FDCPA’s statute of limitations by\nrequiring that individuals receive “notice of the FDCPA violation.”\n\n * * *\n\n Aside from the fact that Benzemann I simply does not say what\nPlaintiff would like, there are other reasons to reject Plaintiff’s\nproposed notice requirement. First, the statutory text provides no\nsupport for such a rule. We have observed that statutes of limitation\n“inevitably reflect[ ] a value judgment concerning the point at which\nthe interests in favor of protecting valid claims are outweighed by the\ninterests in prohibiting the prosecution of stale ones.”33 Thus, “strict\nadherence to limitation periods is the best guarantee of evenhanded\nadministration of the law.”34 Here, strict adherence requires little\nimagination, since the statutory text is unambiguous: FDCPA claims\nmust be brought “within one year from the date on which the violation\n\n 32 Id. at 103 n.2.\n 33Carey v. Int’l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d\nCir. 1999) (internal quotation marks omitted).\n 34 Id. (internal quotation marks omitted).\n\n\n\n\n 13\n\foccurs.”35 A “violation”—“[a]n infraction or breach of the law”36—\n“occurs” when it “take[s] place.”37 It is one thing to conclude, as we\ndid in Benzemann I, that a breach of the law might not take place until\nunlawful conduct causes an injury. But it is quite another to suggest\nthat a breach of the law does not take place until a victim receives\nnotice of the statutory violation. On Plaintiff’s theory, if an individual\nnever received such notice, a breach of the law never took place—no\nmatter that the individual was in fact injured by unlawful conduct.\nThis novel interpretation might help Plaintiff evade the FDCPA’s\nstatute of limitations, but it appears to us unsupported by the common\nunderstanding of the words “violation” and “occur.”\n\n Second, unlike the rule we adopted in Benzemann I and restate\ntoday, Plaintiff’s proposal is not easily administrable. Plaintiff makes\nno attempt to define the contours of what constitutes sufficient “notice\nof the FDCPA violation” other than to suggest that, here, it means\n“notice of [a] [r]estraining [n]otice that violates the FDCPA.”38 But\neven this limitation provides only so much help. A restraining notice\nmight violate the FDCPA for any number of reasons. Where, as here,\na fundamental error is evident on the face of the restraining notice, the\nnotice might itself provide “notice of the FDCPA violation.” That will\nnot always be the case, however. Yet Plaintiff does not identify a way\n\n 35 15 U.S.C. § 1692k(d).\n 36 Violation, BLACK’S LAW DICTIONARY (10th ed. 2014).\n 37 Occur, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1561 (1981).\n 38 Pl.’s Br. 6.\n\n\n\n\n 14\n\fto distinguish between this straightforward case and those instances\nin which the type of “notice” necessary to identify “the FDCPA\nviolation” will be far less self‐evident. Were we to adopt a notice\nrequirement, the question of how much notice is enough would, we\nthink, bedevil litigants and courts for some time to come.\n\n Finally, and relatedly, Plaintiff’s proposal undermines the\npolicies that statutes of limitation serve. Among other things,\nlimitations periods encourage putative plaintiffs to diligently\nprosecute their claims39 and “promote justice by preventing surprises\nthrough plaintiffs’ revival of claims that have been allowed to slumber\nuntil evidence has been lost, memories have faded, and witnesses have\ndisappeared.”40 Plaintiff’s rule, which incents strategic delay—not to\n\n 39 See Statute of Limitations, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The\npurpose of [statutes of limitation] is to require diligent prosecution of known claims\n. . . .”); see also, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352 (1983)\n(“Limitations periods are intended to . . . prevent plaintiffs from sleeping on their\nrights.”); United States v. Wiley, 78 U.S. 508, 513–14 (1870) (Statutes of limitation “are\nenacted upon the presumption that one having a well‐founded claim will not delay\nenforcing it beyond a reasonable time, if he has the power to sue.”).\n 40CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014) (internal quotation marks and\nbrackets omitted). See also, e.g., Bd. of Regents v. Tomanio, 446 U.S. 478, 487 (1980)\n(“[T]here comes a point at which the delay of a plaintiff in asserting a claim is\nsufficiently likely either to impair the accuracy of the fact‐finding process or to\nupset settled expectations that a substantive claim will be barred without respect to\nwhether it is meritorious.”); Bell v. Morrison, 26 U.S. 351, 360 (1828) (Statutes of\nlimitation are “wise and beneficial law[s]” that “afford security against stale\ndemands, after the true state of the transaction may have been forgotten, or be\nincapable of explanation.”); cf. Oliver W. Holmes, Jr., The Path of the Law, 10 HARV.\nL. REV. 457, 476–77 (1897) (“[T]he foundation of the acquisition of rights by lapse of\ntime is to be looked for in the position of the person who gains them, not in that of\n\n\n\n\n 15\n\fmention endless litigation concerning the sufficiency of notice—does\njust the opposite.\n\n * * *\n\n For these reasons, we conclude that an FDCPA violation occurs\nfor the purposes of the one‐year statute of limitations when an\nindividual is injured by unlawful conduct. Here, Plaintiff was injured\non December 13, 2011, when Citibank froze his accounts. Because\nPlaintiff filed suit one year and one day later, his FDCPA claim is time‐\nbarred.\n\n C. The “Discovery Rule”\n\n Plaintiff also contends that his claim is timely pursuant to the\ncommon‐law “discovery rule.” We disagree.\n\n Under the discovery rule, “a plaintiff’s cause of action accrues\nwhen he discovers, or with due diligence should have discovered, the\ninjury that is the basis of the litigation.”41 We have not had occasion to\ndecide whether the discovery rule applies to FDCPA claims and need\n\n\n\n\nthe loser. . . . A thing which you have enjoyed and used as your own for a long time,\nwhether property or an opinion, takes root in your being and cannot be torn away\nwithout your resenting the act and trying to defend yourself, however you came by\nit.”).\n 41 Guilbert, 480 F.3d at 149 (internal quotation marks omitted).\n\n\n\n\n 16\n\fnot do so here because, as the District Court recognized, Plaintiff’s\nclaim would be time‐barred in any event.42\n\n The Supreme Court has made clear that, under the discovery\nrule, “discovery of the injury, not discovery of the other elements of a\nclaim, is what starts the clock.”43 This standard is plainly satisfied here.\nBy Plaintiff’s own account, he discovered the injury—that Citibank\nhad frozen his accounts—on the same day that it occurred: December\n13, 2011. Accordingly, Plaintiff’s FDCPA claim is time‐barred even\nunder the discovery rule.44\n\n\n 42 In concluding that the FDCPA’s text does not support Plaintiff’s proposed\nnotice requirement, we do not mean to preclude the possibility that the FDCPA’s\nstatute of limitations is subject to the discovery rule. Indeed, we have previously\nobserved that “federal court[s] generally employ[ ] the ‘discovery rule.’” Id.\n(emphasis added). There might be reason to question this presumption. See, e.g.,\nTRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) (noting that, though “lower federal\ncourts generally apply a discovery accrual rule when a statute is silent on the issue,”\nthe Supreme Court has “not adopted that position as [its] own” (internal quotation\nmarks omitted)). But we need not reach this issue here. Although we interpret the\nwords “violation” and “occur” as a signal that the FDCPA’s limitations period\ngenerally commences when an individual is injured by unlawful conduct, we do\nnot discount the possibility that the discovery rule or, in appropriate circumstances,\nanother doctrine could alter or extend the limitations period. In addition, we note\nthat the Supreme Court has recently granted certiorari in an action that raises this\nquestion and might soon conclusively resolve the issue. See Rotkiske v. Klemm, 890\nF.3d 422 (3d Cir. 2018), cert. granted, 139 S. Ct. 1259 (Feb. 25, 2019) (No. 18‐328).\n 43 Rotella v. Wood, 528 U.S. 549, 555 (2000) (emphasis added).\n 44 We have previously described the discovery rule as applying to both the\ncomplained‐of injury and its cause. See A.Q.C. ex rel. Castillo v. United States, 656\nF.3d 135, 140 (2d Cir. 2011) (“The diligence‐discovery rule sets the accrual date at\nthe time when, with reasonable diligence, the plaintiff has or . . . should have\n\n\n\n\n 17\n\f D. “Equitable Tolling”\n\n Finally, Plaintiff contends that his claim is timely under the\ndoctrine of “equitable tolling.” Once again, we disagree.\n\n As an initial matter, Plaintiff failed to raise this argument before\nthe District Court.45 “[A]n appellate court [generally] will not consider\nan issue raised for the first time on appeal.”46 Although we can exercise\nour discretion to do so “where necessary to avoid a manifest\ninjustice,”47 Plaintiff has not attempted to meet this standard.\n\n\n\n\ndiscovered the critical facts of both his injury and its cause.” (internal quotation\nmarks omitted; emphasis added)). We need not decide today whether we can\nreconcile our description of the discovery rule in cases such as A.Q.C. with the\nlimitation the Supreme Court expressed in Rotella, which we appeared to adopt in\nGuilbert. We agree with the District Court that, to the extent Plaintiff did not know\nthe precise cause of his injury on December 13, 2011, he possessed enough\ninformation to strongly suspect that it had been caused by conduct that was legally\nactionable. See Benzemann, 2018 WL 1665253, at *6–*7 (noting Plaintiff’s deposition\ntestimony that he contacted his attorney shortly after learning his accounts were\nfrozen because he concluded, in light of his experience in 2008, that he “might\n[have] a legal problem” (internal quotation marks omitted)).\n 45 We reject Plaintiff’s contention that he implicitly raised the issue during\noral argument before the District Court on the motion to dismiss that was the\nsubject of our decision in Benzemann I. Had Plaintiff in fact intended to raise\nequitable tolling more than three years ago, it is highly unlikely that he would have\nfailed to do so again in opposing Houslanger’s motion for summary judgment.\n 46Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018) (internal\nquotation mark omitted).\n 47 Id. at 198–99.\n\n\n\n\n 18\n\f In any event, Plaintiff’s argument fails on the merits. As a\ngeneral matter, equitable tolling “pauses the running of, or tolls, a\nstatute of limitations when a litigant has pursued his rights diligently\nbut some extraordinary circumstance prevents him from bringing a\ntimely action.”48 Assuming, for the sake of argument only, that the\ndoctrine of equitable tolling applies to the FDCPA, there is ample\nreason to conclude that Plaintiff has failed to satisfy its requirements.\n\n Plaintiff discovered that Citibank froze his accounts on\nDecember 13, 2011 and began investigating the incident that evening.\nBy the next day, Plaintiff had gathered all the information necessary to\nbring an FDCPA claim. Yet, for reasons known only to Plaintiff and\nhis counsel, Plaintiff waited just over one year to commence this\naction. In the circumstances, it would be difficult indeed to describe\nPlaintiff’s pursuit of his rights as “diligent.” Nor, in light of Plaintiff’s\nability to ascertain the necessary information in less than twenty‐four\nhours, does it appear that an extraordinary circumstance prevented\nhim from commencing this action in a timely fashion.\n\n III. CONCLUSION\n\n To summarize, we hold that:\n\n (1) An FDCPA violation “occurs,” for the purposes of the\n FDCPA’s one‐year statute of limitations, when an individual\n is injured by the alleged unlawful conduct. Because Plaintiff\n filed suit one year and one day after Citibank froze his\n\n 48 CTS Corp., 573 U.S. at 9 (internal quotation marks omitted).\n\n\n\n\n 19\n\f accounts—the injury caused by the claimed FDCPA\n violation—his claim is time‐barred.\n\n (2) Even if the “discovery rule” applies to FDCPA claims as a\n general matter—an issue we do not decide—Plaintiff’s claim\n is time‐barred because he discovered his injury on the same\n day that it occurred.\n\n (3) Even if Plaintiff had properly raised the doctrine of\n “equitable tolling” before the District Court, it would not\n salvage his claim because he did not diligently pursue his\n rights, and no extraordinary circumstance precluded him\n from timely commencing this action.\n\n For the foregoing reasons, we AFFIRM the District Court’s\nMarch 23, 2018 judgment.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Alexander A. BENZEMANN, Plaintiff-Appellant, v. HOUSLANGER & ASSOCIATES, PLLC, Todd E. Houslanger, New Century Financial Services, Defendants-Appellees, Citibank N.A., Defendant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐1162‐cv\\nBenzemann v. Houslanger & Assocs., PLLC\\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2018\\n\\n No. 18‐1162‐cv\\n\\n ALEXANDER A. BENZEMANN,\\n Plaintiff‐Appellant,\\n\\n v.\\n\\n HOUSLANGER & ASSOCIATES, PLLC, TODD E. HOUSLANGER, NEW\\n CENTURY FINANCIAL SERVICES,\\n Defendants‐Appellees,\\n\\n CITIBANK N.A.,\\n Defendant.\\n\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Southern District of New York\\n\\n\\n\\n ARGUED: APRIL 3, 2019\\n DECIDED: MAY 13, 2019\\n\\fBefore: KATZMANN, Chief Judge, WALKER and CABRANES, Circuit\\nJudges.\\n\\n\\n\\n\\n Plaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”)\\nappeals from a judgment of the United States District Court for the\\nSouthern District of New York (Naomi Reice Buchwald, Judge)\\ngranting summary judgment in favor of Defendants‐Appellees\\nHouslanger & Associates, PLLC and Todd E. Houslanger on Plaintiff’s\\nFair Debt Collection Practices Act (“FDCPA”) claim. On appeal, the\\nparties contest a single issue: whether Plaintiff’s FDCPA claim is time‐\\nbarred. We conclude that it is and therefore AFFIRM the District\\nCourt’s March 23, 2018 judgment.\\n\\n\\n\\n\\n ANDREW J. TIAJOLOFF, Tiajoloff & Kelly LLP,\\n New York, NY, for Plaintiff‐Appellant.\\n\\n ROBERT J. BERGSON, Abrams Garfinkel\\n Margolis Bergson, LLP, New York, NY, for\\n Defendants‐Appellees.\\n\\n\\n\\n\\nJOSÉ A. CABRANES, Circuit Judge:\\n\\n In a final attempt to salvage his Fair Debt Collection Practices\\nAct (“FDCPA”) claim against Defendants‐Appellees Houslanger &\\n\\n\\n\\n\\n 2\\n\\fAssociates, PLLC and Todd E. Houslanger (jointly, “Houslanger”),\\nPlaintiff‐Appellant Alexander A. Benzemann (“Plaintiff”) asks us to\\nendorse a novel—and potentially far‐reaching—construction of the\\nFDCPA’s statute of limitations. We decline the invitation.\\n\\n An FDCPA claim must be filed “within one year from the date\\non which the violation occurs.”1 Relying on certain language in our\\ndecision in Benzemann v. Citibank N.A. (“Benzemann I”)2, Plaintiff\\ncontends that an FDCPA “violation” does not “occur[ ]”—and the\\nstatute of limitations does not begin to run—until an individual is\\ninjured and receives “notice of the FDCPA violation.”3 The United\\nStates District Court for the Southern District of New York (Naomi\\nReice Buchwald, Judge) rejected Plaintiff’s reading of Benzemann I,\\nconcluded that his FDCPA claim is time‐barred, and granted summary\\njudgment in Houslanger’s favor. We agree and therefore AFFIRM the\\nDistrict Court’s March 23, 2018 judgment.\\n\\n I. BACKGROUND\\n\\n We draw the facts, which are undisputed or presented in the\\nlight most favorable to Plaintiff, from the summary judgment record.4\\n\\n\\n\\n 1 15 U.S.C. § 1692k(d).\\n 2 806 F.3d 98 (2d Cir. 2015) (“Benzemann I”).\\n 3 Pl.’s Br. 9; see also Benzemann I, 806 F.3d at 103.\\n 4 In re DeRogatis, 904 F.3d 174, 180 (2d Cir. 2018) (“Because the appeals\\nchallenge orders granting summary judgment to defendants, we present here the\\n\\n\\n\\n\\n 3\\n\\f A. The Restraining Notices\\n\\n On April 21, 2008, Houslanger sent a restraining notice\\nreferencing a 2003 judgment against an individual named Andrew\\nBenzemann (“Andrew”) to Citibank, N.A. (“Citibank”), where\\nPlaintiff held an account.5 The notice named Andrew as the judgment\\ndebtor, but it listed Plaintiff’s social security number and address. On\\nApril 30, 2008, Citibank “froze” Plaintiff’s account. After Plaintiff’s\\nattorney notified Houslanger of the error, Houslanger withdrew the\\nrestraining notice, and Citibank lifted the freeze.\\n\\n More than three years later, on December 6, 2011, Houslanger\\n(somewhat inexplicably) sent Citibank a second restraining notice\\ncontaining similar information—i.e., naming Andrew as the judgment\\ndebtor but listing Plaintiff’s social security number and address.\\nPerhaps not surprisingly, Citibank froze Plaintiff’s accounts. On\\nDecember 13, 2011 Plaintiff became aware that he could not gain access\\nto his Citibank accounts. He called Citibank, but the representative\\nwith whom he spoke gave him little information about why his\\naccounts were unavailable. Distressed, Plaintiff contacted his attorney\\nthat same evening. The next day, Plaintiff learned that his accounts\\nhad been frozen pursuant to a restraining notice. By the evening of\\n\\n\\n\\nversion of the facts most favorable to [plaintiff]’s claims, and we draw all reasonable\\ninferences in [his] favor.”).\\n 5 Under New York state law, a “restraining notice serves as a type of\\ninjunction prohibiting the transfer of [a] judgment debtor’s property.” Aspen Indus.\\nv. Marine Midland Bank, 52 N.Y.2d 575, 579 (1981).\\n\\n\\n\\n\\n 4\\n\\fDecember 15, 2011, the freeze had been lifted, and Plaintiff had\\nregained access to his funds.\\n\\n About one year later, on December 14, 2012, Plaintiff\\ncommenced this action, asserting, among others, the FDCPA claim at\\nthe center of this appeal.\\n\\n B. Benzemann I\\n\\n On June 27, 2014, the District Court dismissed Plaintiff’s FDCPA\\nclaim as untimely.6 The District Court concluded that the alleged\\nFDCPA violation occurred, triggering the one‐year statute of\\nlimitations, when Houslanger mailed the restraining notice on\\nDecember 6, 2011. Because Plaintiff commenced this action one year\\nand eight days later, the District Court held that his FDCPA claim is\\ntime‐barred.\\n\\n In Benzemann I, we concluded that the District Court “erred in\\nfinding that the FDCPA violation ‘occurred’ when Houslanger sent the\\nrestraining notice.”7 Instead, we held that “where a debt collector\\nsends an allegedly unlawful restraining notice to a bank, the FDCPA\\n\\n\\n\\n\\n 6 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2014 WL 2933140,\\nat *5–*8 (S.D.N.Y. June 27, 2014).\\n 7 Benzemann I, 806 F.3d at 103.\\n\\n\\n\\n\\n 5\\n\\fviolation does not ‘occur’ for purposes of [the statute of limitations]\\nuntil the bank freezes the debtor’s account.”8\\n\\n Because the record was at that time unclear as to whether\\nCitibank froze Plaintiff’s accounts on December 13 or December 14,\\n2011, we remanded for further proceedings.9 We also directed the\\nDistrict Court to consider, in the event it found that the freeze occurred\\non December 13, 2011, whether the FDCPA’s statute of limitations is\\nsubject to the common‐law “discovery rule.”10\\n\\n C. Additional Factual Development After Remand\\n\\n After limited discovery, it became clear that Citibank froze\\nPlaintiff’s accounts on December 13, 2011.\\n\\n Citibank’s records, produced pursuant to a subpoena, show that\\nCitibank “blocked” Plaintiff’s accounts and an associated debit card at\\n6:14 p.m. on the evening of December 13, 2011. A Citibank employee\\n\\n\\n 8 Id.\\n 9 Though seemingly trivial on its face, as is frequently true in cases of\\ncompeting claims regarding statutes of limitation, the one‐day difference was\\npotentially significant. If Citibank froze Plaintiff’s accounts on December 14, 2011,\\nthen his FDCPA claim, commenced exactly one year later, is necessarily timely. If\\nthe freeze occurred even one day earlier, however, then the statute of limitations\\nmight preclude recovery.\\n 10 As we explain below, under the discovery rule, “a plaintiff’s cause of\\naction accrues when he discovers, or with due diligence should have discovered,\\nthe injury that is the basis of the litigation.” Guilbert v. Gardner, 480 F.3d 140, 149\\n(2d Cir. 2007) (internal quotation marks omitted).\\n\\n\\n\\n\\n 6\\n\\ftestified that after that time, Plaintiff could not withdraw funds, had\\nonly limited ability to deposit funds, and did not have access to the\\naccounts electronically.\\n\\n Plaintiff’s sworn declaration and deposition testimony\\ncorroborate this account. Plaintiff averred that, on December 13, 2011,\\nin the evening, his wife informed him that “she had a problem using\\n[his] Citibank debit card at an [automated teller machine].”11 Plaintiff\\nattempted to gain access to his accounts electronically but was unable\\nto do so because they “were not visible on‐line.”12 At that point, he\\n“concluded that [his] accounts had been frozen because the same thing\\nhad occurred . . . in 2008.”13 This realization was “extremely\\ndistressing,”14 and by approximately 8:00 p.m. that evening, Plaintiff\\n“thought [he] was going to have a heart attack.”15\\n\\n Notwithstanding his distress, Plaintiff acted immediately. He\\ncontacted Citibank by telephone to learn “what happened to [his]\\naccounts.”16 A Citibank employee informed Plaintiff that his accounts\\nhad been blocked and instructed him to call the next day for more\\n\\n\\n 11 J.A. 176.\\n 12 Id. at 177.\\n 13 Id. at 176.\\n 14 Id.\\n 15 Id. at 299.\\n 16 Id. at 176.\\n\\n\\n\\n\\n 7\\n\\finformation. Plaintiff also contacted his attorney, who represented\\nhim when Citibank erroneously froze his account in 2008, because that\\nexperience led him to believe that he “might [have] a legal problem.”17\\n\\n The next day, December 14, 2011, Plaintiff learned that Citibank\\nhad frozen his accounts pursuant to the second erroneous restraining\\nnotice sent by Houslanger on December 6, 2011.\\n\\n D. The District Court’s Memorandum and Order\\n\\n After discovery, Houslanger moved for summary judgment,\\ncontending once again that Plaintiff’s FDCPA claim is time‐barred.\\nThe District Court agreed and granted summary judgment in\\nHouslanger’s favor.18\\n\\n First, the District Court found that Citibank froze Plaintiff’s\\naccounts—i.e., that the alleged FDCPA violation occurred, triggering\\nthe statute of limitations—on December 13, 2011. Because Plaintiff\\nfiled suit on December 14, 2012, one year and one day later, the District\\nCourt held that Plaintiff’s FDCPA claim is untimely.\\n\\n Second, the District Court concluded that it did not need to\\ndetermine whether the discovery rule applies to FDCPA claims as a\\ngeneral matter because the outcome in this case would be the same in\\nany event. The evidence established that Plaintiff learned that Citibank\\n\\n\\n 17 Id. at 302.\\n 18 See Benzemann v. Citibank N.A., No. 12 Civ. 9145 (NRB), 2018 WL 1665253,\\nat *5–*7 (S.D.N.Y. Mar. 22, 2018).\\n\\n\\n\\n\\n 8\\n\\ffroze his accounts on December 13, 2011, so that the date of injury and\\nthe date of discovery were the same. Accordingly, Plaintiff’s claim\\nwould be time‐barred even under the discovery rule.\\n\\n This appeal followed.\\n\\n II. DISCUSSION\\n\\n A. Standard of Review\\n\\n We review an award of summary judgment, including on the\\nbasis of “an affirmative defense such as the statute of limitations,”19 de\\nnovo, “construing the evidence in the light most favorable to the\\nnonmoving party and drawing all reasonable inferences and resolving\\nall ambiguities in [his] favor.”20 Summary judgment is appropriate if\\n“there is no genuine dispute as to any material fact and the movant is\\nentitled to judgment as a matter of law.”21\\n\\n B. Interpreting Benzemann I\\n\\n The parties’ dispute is based principally on our construction of\\nthe FDCPA’s statute of limitations in Benzemann I.\\n\\n\\n\\n\\n 19 Giordano v. Mkt. Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).\\n 20Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (internal\\nquotation mark omitted).\\n 21 Fed. R. Civ. P. 56(a).\\n\\n\\n\\n\\n 9\\n\\f As noted above, an FDCPA claim must be brought “within one\\nyear from the date on which the violation occurs.”22 We held in\\nBenzemann I “that where a debt collector sends an allegedly unlawful\\nrestraining notice to a bank, the FDCPA violation does not ‘occur’ for\\npurposes of [the statute of limitations] until the bank freezes the\\ndebtor’s account.”23 Though this conclusion appears straightforward,\\nwe also observed that “the FDCPA violation here did not ‘occur’ until\\nCitibank froze [Plaintiff]’s account because it was only then that he had\\na complete cause of action and notice of the FDCPA violation.”24\\n\\n Plaintiff makes much of this latter passage in Benzemann I. He\\ncontends that, as interpreted in Benzemann I, the FDCPA’s limitations\\nperiod commences only when an individual is injured by unlawful\\nconduct and receives “notice of the FDCPA violation.”25 Here, under\\nPlaintiff’s theory, the statute of limitations did not begin to run until\\nPlaintiff learned that Citibank had frozen his accounts pursuant to the\\nunlawful restraining notice that Houslanger prepared. Plaintiff argues\\nthat, because he did not learn of the restraining notice until December\\n14, 2011, his FDCPA claim, which he commenced exactly one year\\nlater, is timely.\\n\\n\\n\\n\\n 22 15 U.S.C. § 1692k(d).\\n 23 Benzemann I, 806 F.3d at 103.\\n 24 Id. at 103 (emphasis added).\\n 25 Pl.’s Br. 9.\\n\\n\\n\\n\\n 10\\n\\f We conclude that our observation regarding “notice” cannot\\nbear the weight Plaintiff assigns to it. To the extent our decision in\\nBenzemann I created any confusion, we now make clear that an FDCPA\\nviolation occurs, triggering the statute of limitations, when an\\nindividual is injured by unlawful conduct.\\n\\n * * *\\n\\n We reject Plaintiff’s position for several reasons. As an initial\\nmatter, we did not consider in Benzemann I the issue that Plaintiff now\\ncontends we decided. The question before us in Benzemann I was\\nwhether an FDCPA violation can occur, for the purposes of the statute\\nof limitations, before the victim is injured. We concluded that it could\\nnot. In reaching that conclusion, we were not required to—and, we\\nnow make clear, did not—examine whether the triggering of the\\nstatute of limitations also requires “notice of the FDCPA violation.”\\nBecause that issue was not before us, there is no basis for assuming\\nthat we reached it, especially in light of the otherwise clear principle\\nwe expressly described as our holding.26\\n\\n In any event, read as a whole, Benzemann I makes clear that we\\nintended to tether the commencement of the FDCPA’s limitations\\nperiod to the date of injury. We began by reciting the “general\\n\\n\\n See Columbia Broad. Sys., Inc. v. Am. Soc’y of Composers, Authors & Publishers,\\n 26\\n\\n620 F.2d 930, 935 (2d Cir. 1980) (“[A]ppellate courts, endeavoring to rule beyond\\nthe precise holding of a case, normally make that intention unmistakably clear.”);\\nUnited States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring) (“A\\njudge’s power to bind is limited to the issue that is before him.”).\\n\\n\\n\\n\\n 11\\n\\fprinciple of law that a cause of action accrues when conduct that\\ninvades the rights of another has caused injury.”27 We then noted that\\n“[b]efore Citibank froze [Plaintiff]’s account, [he] had suffered no\\ninjury” and therefore “could not have sued Houslanger.”28 To avoid\\nan “anomaly” wherein “the FDCPA’s statute of limitations . . . begin[s]\\nto run before an FDCPA plaintiff [can] file suit,”29 we concluded that\\nan FDCPA violation cannot occur before an individual is injured by\\nunlawful conduct.30 Thus, from the very beginning, our focus in\\nBenzemann I was the date of Plaintiff’s injury.\\n\\n In addition, our instructions to the District Court refute\\nPlaintiff’s interpretation. Having determined that an FDCPA violation\\noccurs for the purposes of the statute of limitations when a bank\\nfreezes a debtor’s account, we directed the District Court to conduct\\nfurther proceedings to ascertain the date of the freeze.31 If we had\\nconcluded that an FDCPA violation could not occur until an\\nindividual received “notice of the FDCPA violation,” as Plaintiff\\nsuggests, this instruction presumably would have been different. We\\nalso directed the District Court to consider whether the discovery rule\\n\\n\\n 27 Benzemann I, 806 F.3d at 101 (internal quotation marks and brackets\\nomitted).\\n 28 Id.\\n 29 Id. at 101, 102.\\n 30 Id. at 103.\\n 31 Id.\\n\\n\\n\\n\\n 12\\n\\fapplies to FDCPA claims only if it determined that Citibank froze\\nPlaintiff’s accounts on December 13, 2011.32 This instruction is\\nconsistent with the conclusion that Plaintiff’s knowledge—or lack\\nthereof—is irrelevant in determining when an alleged FDCPA\\nviolation occurs.\\n\\n Accordingly, a careful reading makes clear that we did not\\nintend in Benzemann I to expand the FDCPA’s statute of limitations by\\nrequiring that individuals receive “notice of the FDCPA violation.”\\n\\n * * *\\n\\n Aside from the fact that Benzemann I simply does not say what\\nPlaintiff would like, there are other reasons to reject Plaintiff’s\\nproposed notice requirement. First, the statutory text provides no\\nsupport for such a rule. We have observed that statutes of limitation\\n“inevitably reflect[ ] a value judgment concerning the point at which\\nthe interests in favor of protecting valid claims are outweighed by the\\ninterests in prohibiting the prosecution of stale ones.”33 Thus, “strict\\nadherence to limitation periods is the best guarantee of evenhanded\\nadministration of the law.”34 Here, strict adherence requires little\\nimagination, since the statutory text is unambiguous: FDCPA claims\\nmust be brought “within one year from the date on which the violation\\n\\n 32 Id. at 103 n.2.\\n 33Carey v. Int’l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d\\nCir. 1999) (internal quotation marks omitted).\\n 34 Id. (internal quotation marks omitted).\\n\\n\\n\\n\\n 13\\n\\foccurs.”35 A “violation”—“[a]n infraction or breach of the law”36—\\n“occurs” when it “take[s] place.”37 It is one thing to conclude, as we\\ndid in Benzemann I, that a breach of the law might not take place until\\nunlawful conduct causes an injury. But it is quite another to suggest\\nthat a breach of the law does not take place until a victim receives\\nnotice of the statutory violation. On Plaintiff’s theory, if an individual\\nnever received such notice, a breach of the law never took place—no\\nmatter that the individual was in fact injured by unlawful conduct.\\nThis novel interpretation might help Plaintiff evade the FDCPA’s\\nstatute of limitations, but it appears to us unsupported by the common\\nunderstanding of the words “violation” and “occur.”\\n\\n Second, unlike the rule we adopted in Benzemann I and restate\\ntoday, Plaintiff’s proposal is not easily administrable. Plaintiff makes\\nno attempt to define the contours of what constitutes sufficient “notice\\nof the FDCPA violation” other than to suggest that, here, it means\\n“notice of [a] [r]estraining [n]otice that violates the FDCPA.”38 But\\neven this limitation provides only so much help. A restraining notice\\nmight violate the FDCPA for any number of reasons. Where, as here,\\na fundamental error is evident on the face of the restraining notice, the\\nnotice might itself provide “notice of the FDCPA violation.” That will\\nnot always be the case, however. Yet Plaintiff does not identify a way\\n\\n 35 15 U.S.C. § 1692k(d).\\n 36 Violation, BLACK’S LAW DICTIONARY (10th ed. 2014).\\n 37 Occur, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1561 (1981).\\n 38 Pl.’s Br. 6.\\n\\n\\n\\n\\n 14\\n\\fto distinguish between this straightforward case and those instances\\nin which the type of “notice” necessary to identify “the FDCPA\\nviolation” will be far less self‐evident. Were we to adopt a notice\\nrequirement, the question of how much notice is enough would, we\\nthink, bedevil litigants and courts for some time to come.\\n\\n Finally, and relatedly, Plaintiff’s proposal undermines the\\npolicies that statutes of limitation serve. Among other things,\\nlimitations periods encourage putative plaintiffs to diligently\\nprosecute their claims39 and “promote justice by preventing surprises\\nthrough plaintiffs’ revival of claims that have been allowed to slumber\\nuntil evidence has been lost, memories have faded, and witnesses have\\ndisappeared.”40 Plaintiff’s rule, which incents strategic delay—not to\\n\\n 39 See Statute of Limitations, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The\\npurpose of [statutes of limitation] is to require diligent prosecution of known claims\\n. . . .”); see also, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352 (1983)\\n(“Limitations periods are intended to . . . prevent plaintiffs from sleeping on their\\nrights.”); United States v. Wiley, 78 U.S. 508, 513–14 (1870) (Statutes of limitation “are\\nenacted upon the presumption that one having a well‐founded claim will not delay\\nenforcing it beyond a reasonable time, if he has the power to sue.”).\\n 40CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014) (internal quotation marks and\\nbrackets omitted). See also, e.g., Bd. of Regents v. Tomanio, 446 U.S. 478, 487 (1980)\\n(“[T]here comes a point at which the delay of a plaintiff in asserting a claim is\\nsufficiently likely either to impair the accuracy of the fact‐finding process or to\\nupset settled expectations that a substantive claim will be barred without respect to\\nwhether it is meritorious.”); Bell v. Morrison, 26 U.S. 351, 360 (1828) (Statutes of\\nlimitation are “wise and beneficial law[s]” that “afford security against stale\\ndemands, after the true state of the transaction may have been forgotten, or be\\nincapable of explanation.”); cf. Oliver W. Holmes, Jr., The Path of the Law, 10 HARV.\\nL. REV. 457, 476–77 (1897) (“[T]he foundation of the acquisition of rights by lapse of\\ntime is to be looked for in the position of the person who gains them, not in that of\\n\\n\\n\\n\\n 15\\n\\fmention endless litigation concerning the sufficiency of notice—does\\njust the opposite.\\n\\n * * *\\n\\n For these reasons, we conclude that an FDCPA violation occurs\\nfor the purposes of the one‐year statute of limitations when an\\nindividual is injured by unlawful conduct. Here, Plaintiff was injured\\non December 13, 2011, when Citibank froze his accounts. Because\\nPlaintiff filed suit one year and one day later, his FDCPA claim is time‐\\nbarred.\\n\\n C. The “Discovery Rule”\\n\\n Plaintiff also contends that his claim is timely pursuant to the\\ncommon‐law “discovery rule.” We disagree.\\n\\n Under the discovery rule, “a plaintiff’s cause of action accrues\\nwhen he discovers, or with due diligence should have discovered, the\\ninjury that is the basis of the litigation.”41 We have not had occasion to\\ndecide whether the discovery rule applies to FDCPA claims and need\\n\\n\\n\\n\\nthe loser. . . . A thing which you have enjoyed and used as your own for a long time,\\nwhether property or an opinion, takes root in your being and cannot be torn away\\nwithout your resenting the act and trying to defend yourself, however you came by\\nit.”).\\n 41 Guilbert, 480 F.3d at 149 (internal quotation marks omitted).\\n\\n\\n\\n\\n 16\\n\\fnot do so here because, as the District Court recognized, Plaintiff’s\\nclaim would be time‐barred in any event.42\\n\\n The Supreme Court has made clear that, under the discovery\\nrule, “discovery of the injury, not discovery of the other elements of a\\nclaim, is what starts the clock.”43 This standard is plainly satisfied here.\\nBy Plaintiff’s own account, he discovered the injury—that Citibank\\nhad frozen his accounts—on the same day that it occurred: December\\n13, 2011. Accordingly, Plaintiff’s FDCPA claim is time‐barred even\\nunder the discovery rule.44\\n\\n\\n 42 In concluding that the FDCPA’s text does not support Plaintiff’s proposed\\nnotice requirement, we do not mean to preclude the possibility that the FDCPA’s\\nstatute of limitations is subject to the discovery rule. Indeed, we have previously\\nobserved that “federal court[s] generally employ[ ] the ‘discovery rule.’” Id.\\n(emphasis added). There might be reason to question this presumption. See, e.g.,\\nTRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) (noting that, though “lower federal\\ncourts generally apply a discovery accrual rule when a statute is silent on the issue,”\\nthe Supreme Court has “not adopted that position as [its] own” (internal quotation\\nmarks omitted)). But we need not reach this issue here. Although we interpret the\\nwords “violation” and “occur” as a signal that the FDCPA’s limitations period\\ngenerally commences when an individual is injured by unlawful conduct, we do\\nnot discount the possibility that the discovery rule or, in appropriate circumstances,\\nanother doctrine could alter or extend the limitations period. In addition, we note\\nthat the Supreme Court has recently granted certiorari in an action that raises this\\nquestion and might soon conclusively resolve the issue. See Rotkiske v. Klemm, 890\\nF.3d 422 (3d Cir. 2018), cert. granted, 139 S. Ct. 1259 (Feb. 25, 2019) (No. 18‐328).\\n 43 Rotella v. Wood, 528 U.S. 549, 555 (2000) (emphasis added).\\n 44 We have previously described the discovery rule as applying to both the\\ncomplained‐of injury and its cause. See A.Q.C. ex rel. Castillo v. United States, 656\\nF.3d 135, 140 (2d Cir. 2011) (“The diligence‐discovery rule sets the accrual date at\\nthe time when, with reasonable diligence, the plaintiff has or . . . should have\\n\\n\\n\\n\\n 17\\n\\f D. “Equitable Tolling”\\n\\n Finally, Plaintiff contends that his claim is timely under the\\ndoctrine of “equitable tolling.” Once again, we disagree.\\n\\n As an initial matter, Plaintiff failed to raise this argument before\\nthe District Court.45 “[A]n appellate court [generally] will not consider\\nan issue raised for the first time on appeal.”46 Although we can exercise\\nour discretion to do so “where necessary to avoid a manifest\\ninjustice,”47 Plaintiff has not attempted to meet this standard.\\n\\n\\n\\n\\ndiscovered the critical facts of both his injury and its cause.” (internal quotation\\nmarks omitted; emphasis added)). We need not decide today whether we can\\nreconcile our description of the discovery rule in cases such as A.Q.C. with the\\nlimitation the Supreme Court expressed in Rotella, which we appeared to adopt in\\nGuilbert. We agree with the District Court that, to the extent Plaintiff did not know\\nthe precise cause of his injury on December 13, 2011, he possessed enough\\ninformation to strongly suspect that it had been caused by conduct that was legally\\nactionable. See Benzemann, 2018 WL 1665253, at *6–*7 (noting Plaintiff’s deposition\\ntestimony that he contacted his attorney shortly after learning his accounts were\\nfrozen because he concluded, in light of his experience in 2008, that he “might\\n[have] a legal problem” (internal quotation marks omitted)).\\n 45 We reject Plaintiff’s contention that he implicitly raised the issue during\\noral argument before the District Court on the motion to dismiss that was the\\nsubject of our decision in Benzemann I. Had Plaintiff in fact intended to raise\\nequitable tolling more than three years ago, it is highly unlikely that he would have\\nfailed to do so again in opposing Houslanger’s motion for summary judgment.\\n 46Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018) (internal\\nquotation mark omitted).\\n 47 Id. at 198–99.\\n\\n\\n\\n\\n 18\\n\\f In any event, Plaintiff’s argument fails on the merits. As a\\ngeneral matter, equitable tolling “pauses the running of, or tolls, a\\nstatute of limitations when a litigant has pursued his rights diligently\\nbut some extraordinary circumstance prevents him from bringing a\\ntimely action.”48 Assuming, for the sake of argument only, that the\\ndoctrine of equitable tolling applies to the FDCPA, there is ample\\nreason to conclude that Plaintiff has failed to satisfy its requirements.\\n\\n Plaintiff discovered that Citibank froze his accounts on\\nDecember 13, 2011 and began investigating the incident that evening.\\nBy the next day, Plaintiff had gathered all the information necessary to\\nbring an FDCPA claim. Yet, for reasons known only to Plaintiff and\\nhis counsel, Plaintiff waited just over one year to commence this\\naction. In the circumstances, it would be difficult indeed to describe\\nPlaintiff’s pursuit of his rights as “diligent.” Nor, in light of Plaintiff’s\\nability to ascertain the necessary information in less than twenty‐four\\nhours, does it appear that an extraordinary circumstance prevented\\nhim from commencing this action in a timely fashion.\\n\\n III. CONCLUSION\\n\\n To summarize, we hold that:\\n\\n (1) An FDCPA violation “occurs,” for the purposes of the\\n FDCPA’s one‐year statute of limitations, when an individual\\n is injured by the alleged unlawful conduct. Because Plaintiff\\n filed suit one year and one day after Citibank froze his\\n\\n 48 CTS Corp., 573 U.S. at 9 (internal quotation marks omitted).\\n\\n\\n\\n\\n 19\\n\\f accounts—the injury caused by the claimed FDCPA\\n violation—his claim is time‐barred.\\n\\n (2) Even if the “discovery rule” applies to FDCPA claims as a\\n general matter—an issue we do not decide—Plaintiff’s claim\\n is time‐barred because he discovered his injury on the same\\n day that it occurred.\\n\\n (3) Even if Plaintiff had properly raised the doctrine of\\n “equitable tolling” before the District Court, it would not\\n salvage his claim because he did not diligently pursue his\\n rights, and no extraordinary circumstance precluded him\\n from timely commencing this action.\\n\\n For the foregoing reasons, we AFFIRM the District Court’s\\nMarch 23, 2018 judgment.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1989,"cells":{"id":{"kind":"number","value":4621972,"string":"4,621,972"},"name":{"kind":"string","value":"Entesar Osman KASHEF, Alfadel Mosabal, Abubakar Abakar, Siama Abdelnabi Hamad, Abbo Ahmed Abakar, Hawa Mohamed Omar, Jane Doe, Nyanriak Tingloth, Reverend Anderia Lual, Nicolas Hakim Lukudu, Turjuman Ramadan Adam, Johnmark Majuc, Joseph Jok, Halima Samuel Khalifa, Ambrose Martin Ulau, Sandi (Sunday) Georgari Marjan, Shafika G. Hassan, Jane Roe, Judy Doe, Sara Noureldirz Abdalla, and Amir Ahmed, Plaintiffs-Appellants, v. BNP PARIBAS S.A., a French Corporation, BNP Paribas North America, Inc., a Delaware Corporation, Does 1-10, and BNP Paribas S.A., New York Branch, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Kashef v. BNP Paribas S.A."},"decision_date":{"kind":"string","value":"2019-05-22"},"docket_number":{"kind":"string","value":"18-1304-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Sack, Parker, Chin\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRINGTON D. PARKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term 2018\\n 7\\n 8 No. 18-1304\\n 9\\n10 ENTESAR OSMAN KASHEF, ALFADEL MOSABAL, ABUBAKAR ABAKAR, SIAMA\\n11 ABDELNABI HAMAD, ABBO AHMED ABAKAR, HAWA MOHAMED OMAR, JANE DOE,\\n12 NYANRIAK TINGLOTH, REVEREND ANDERIA LUAL, NICOLAS HAKIM LUKUDU,\\n13 TURJUMAN RAMADAN ADAM, JOHNMARK MAJUC, JOSEPH JOK, HALIMA SAMUEL\\n14 KHALIFA, AMBROSE MARTIN ULAU, SANDI (SUNDAY) GEORGARI MARJAN, SHAFIKA\\n15 G. HASSAN, JANE ROE, JUDY DOE, SARA NOURELDIRZ ABDALLA, and AMIR AHMED,\\n16\\n17 Plaintiffs-Appellants,\\n18\\n19 v.\\n20\\n21 BNP PARIBAS S.A., a French corporation, BNP PARIBAS NORTH AMERICA, INC., a\\n22 Delaware corporation, DOES 1–10, and BNP PARIBAS S.A., NEW YORK BRANCH,\\n23\\n24 Defendants-Appellees.\\n25\\n26\\n27 Appeal from the United States District Court\\n28 for the Southern District of New York\\n29 No. 16-cv-3228, Alison J. Nathan, District Judge, Presiding.\\n30 (Argued December 12, 2018; Decided May 22, 2019)\\n31\\n32\\n33\\n34\\n35\\n\\n\\n 1\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Before: SACK, PARKER, and CHIN, Circuit Judges.\\n 2\\n 3 Defendants were convicted of federal and state felonies arising from their\\n 4 evasion of U.S. sanctions on Sudan. As Defendants admitted in pleading guilty,\\n 5 they had knowledge of the genocide and ethnic cleansing being perpetrated by\\n 6 the Sudanese regime and the consequences of providing the regime access to\\n 7 additional financial resources, which could be used to escalate the commission of\\n 8 atrocities. Nevertheless, Defendants illegally transacted with sanctioned entities\\n 9 and actively attempted to evade U.S. detection, thus providing the regime access\\n10 to U.S. financial markets. Plaintiffs, victims of the Sudanese regime’s atrocities,\\n11 sued Defendants under New York tort law, alleging that Defendants conspired\\n12 with and aided and abetted the Sudanese regime in its commission of\\n13 widespread atrocities. The United States District Court for the Southern District\\n14 of New York (Nathan, J.) dismissed Plaintiffs’ claims under Federal Rule of Civil\\n15 Procedure 12(b)(6), reasoning that they were barred by the act of state doctrine\\n16 and, in the alternative, were untimely. We VACATE and REMAND.\\n17\\n18\\n19 ________\\n20\\n21 TOBIAS BARRINGTON WOLFF, University of Pennsylvania Law\\n22 School, Philadelphia, PA (Kathryn Lee Boyd & Thomas B.\\n23 Watson, McKool Smith, PC, Los Angeles, CA, on the brief), for\\n24 Plaintiffs-Appellants.\\n25\\n26 CARMINE D. BOCCUZZI, JR. (Jonathan I. Blackman & Avram E.\\n27 Luft, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New\\n28 York, NY, for Defendants-Appellees.\\n29\\n30 ________\\n31\\n32\\n33\\n\\n34\\n\\n\\n\\n 2\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 BARRINGTON D. PARKER, Circuit Judge:\\n\\n 2 Defendant BNP Paribas S.A., a French corporation, is the parent company\\n\\n 3 of various BNP Paribas subsidiaries across the world, including the other named\\n\\n 4 Defendants in this action (collectively “BNPP”). BNPP is a global leader in\\n\\n 5 banking and financial services, operating in 73 countries, including in the United\\n\\n 6 States. BNPP’s annual revenue exceeds 40 billion euros and its total assets\\n\\n 7 amount to approximately 1.9 trillion euros, making it one of the five largest\\n\\n 8 banks in the world.1\\n\\n 9 Following a guilty plea, BNPP was convicted of federal and state felonies\\n\\n10 for evading U.S. sanctions on Sudan. Plaintiffs, who are alleged victims of the\\n\\n11 Sudanese regime’s atrocities, sued BNPP in the United States District Court for\\n\\n12 the Southern District of New York, bringing various tort claims under New York\\n\\n13 law. They allege that BNPP conspired with and aided and abetted the Sudanese\\n\\n14 regime in its commission of widespread atrocities, including murder, mass rape,\\n\\n15 torture, and deliberate infection with HIV, among others. They also allege claims\\n\\n16 of negligence per se, intentional infliction of emotional distress, and negligent\\n\\n17 infliction of emotional distress.\\n\\n\\n\\n 1\\n The information on BNPP’s structure, operations, and finances are publicly known and available\\n through BNPP’s website and its various filings with regulatory agencies.\\n\\n 3\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 The District Court (Nathan, J.) dismissed Plaintiffs’ claims under Federal\\n\\n 2 Rule of Civil Procedure 12(b)(6), reasoning that they were barred by the act of\\n\\n 3 state doctrine and, for the Plaintiffs who were adults at the time of injury (the\\n\\n 4 “Adult Plaintiffs”), otherwise untimely. Because we conclude that the District\\n\\n 5 Court misapplied the act of state doctrine and erroneously determined that the\\n\\n 6 Adult Plaintiffs’ claims were untimely, we vacate and remand for further\\n\\n 7 proceedings.\\n\\n 8 BACKGROUND\\n\\n 9 The atrocities taking place in Sudan are widely known and have been\\n\\n10 condemned by both the United States and the international community as\\n\\n11 genocide. See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted); S. Con. Res.\\n\\n12 133, 108th Cong. (2004) (enacted). In 1997 and 2006, pursuant to the International\\n\\n13 Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., the U.S.\\n\\n14 Government imposed sanctions on Sudan aimed at halting the genocide. See\\n\\n15 Exec. Order No. 13,412 § 1, 71 Fed. Reg. 61,369 (Oct. 17, 2006); Exec. Order No.\\n\\n16 13,067 § 1, 62 Fed. Reg. 59,989 (Nov. 5, 1997); see generally 31 C.F.R. pt. 538.\\n\\n17 Nevertheless, as BNPP itself admitted, from 2002 to 2007, it “conspired with\\n\\n18 numerous Sudanese banks and entities as well as financial institutions outside of\\n\\n\\n\\n 4\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Sudan to violate the U.S. embargo by providing Sudanese banks and entities\\n\\n 2 access to the U.S. financial system.” Stipulated Statement of Facts ¶ 17, United\\n\\n 3 States v. BNP Paribas, S.A., No. 14-cr-00460-LGS (S.D.N.Y. 2015), ECF No. 13 Ex. 2.\\n\\n 4 In 2015, the Federal Government and New York State secured convictions\\n\\n 5 of BNPP for federal and state felonies. BNPP pled guilty to conspiracy to commit\\n\\n 6 an offense against the United States in violation of 18 U.S.C. § 371, by conspiring\\n\\n 7 to violate the IEEPA and the Trading with the Enemy Act, 50 U.S.C. § 4303 et seq.\\n\\n 8 BNPP also pled guilty to New York state crimes of falsifying business records in\\n\\n 9 the first degree, in violation of Penal Law § 175.10, and conspiracy in the fifth\\n\\n10 degree, in violation of Penal Law § 105.05. BNPP was required to pay almost\\n\\n11 nine billion dollars in forfeitures and fines, the largest financial penalty ever\\n\\n12 imposed in a criminal case.2\\n\\n13 BNPP admitted, in a Stipulated Statement of Facts (the “SSOF”), that the\\n\\n14 allegations in the federal and state criminal informations were true, as were\\n\\n15 additional facts set forth in the SSOF, and that had the matter gone to trial, the\\n\\n16 Federal Government and New York State would have proven them beyond a\\n\\n17 reasonable doubt. BNPP conceded that it “continued to process transactions\\n\\n18 involving Sudanese Sanctioned Entities—despite being well aware that its\\n 2\\n Press Release, Dep’t of Justice, BNP Paribas Sentenced for Conspiring to Violate the International Emergency\\n Economic Powers Act and the Trading with the Enemy Act (May 1, 2015).\\n\\n 5\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 conduct violated U.S. law—because the business was profitable” and BNPP “did\\n\\n 2 not want to risk its longstanding relationship with Sudanese clients.” SSOF ¶ 24;\\n\\n 3 see also id. ¶¶ 59–73 (outlining the evidence of BNPP’s knowledge of its illegal\\n\\n 4 conduct).\\n\\n 5 BNPP admitted that it employed many sophisticated methods to violate\\n\\n 6 U.S. law. First, it “carried out transactions with Sanctioned Entities and evaded\\n\\n 7 the U.S. embargo” against Sudan by “deliberately modifying and omitting\\n\\n 8 references to Sudan in the payment messages accompanying these transactions.”\\n\\n 9 Id. ¶ 18. Second, in cooperation with Sudanese entities, it utilized complicated\\n\\n10 payment structures with no legitimate business purpose to mask transaction\\n\\n11 information that could trigger scrutiny. Id. ¶ 16. Third, it moved “illicit\\n\\n12 transactions through unaffiliated satellite banks” to “disguise the involvement of\\n\\n13 Sanctioned Entities in U.S. dollar transactions,” id. ¶¶ 18, 23–26, and went as far\\n\\n14 as coordinating with satellite banks to institute waiting periods between transfers\\n\\n15 so that “U.S. authorities would be unable to link the payments to the involved\\n\\n16 Sanctioned Entit[ies],” id. ¶ 24.\\n\\n17 BNPP also conceded that it had knowledge of the atrocities being\\n\\n18 committed in Sudan and of the consequences of providing Sudan access to U.S.\\n\\n\\n\\n 6\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 financial markets. Specifically, BNPP admitted that its “central role in providing\\n\\n 2 Sudanese financial institutions access to the U.S. financial system, despite the\\n\\n 3 Government of Sudan’s role in supporting terrorism and committing human\\n\\n 4 rights abuses, was recognized by BNPP employees.” Id. ¶ 20. For example, in\\n\\n 5 2004, a manager at BNPP described the political environment in Sudan as\\n\\n 6 “dominated by the Darfur crisis” and called it a “humanitarian catastrophe.” Id.\\n\\n 7 In April 2006, a senior BNPP compliance officer stated in a memorandum that\\n\\n 8 “the growth of revenue from oil is unlikely to help end the conflict” and that “it\\n\\n 9 is probable that Sudan will remain torn up by insurrections and resulting\\n\\n10 repressive measures for a long time.” Id. In 2007, a BNPP compliance officer told\\n\\n11 other high-level compliance and legal personnel that the Sudanese entities with\\n\\n12 which BNPP dealt “play a pivotal part in the support of the Sudanese\\n\\n13 government which . . . has hosted Osama Bin Laden and refuses United Nations\\n\\n14 intervention in Darfur.” Id. A few months later, a BNPP executive warned in a\\n\\n15 memorandum that “in a context where the International Community puts\\n\\n16 pressure to bring an end to the dramatic situation in Darfur, no one would\\n\\n17 understand why BNP Paribas persists in Sudan which could be interpreted as\\n\\n18 supporting the leaders in place.” Id. The SSOF makes clear that despite BNPP’s\\n\\n\\n\\n 7\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 understanding of the likely consequences of its involvement with Sudan, it\\n\\n 2 persisted in illegal conduct on a wide scale because its “business [with Sudan]\\n\\n 3 was profitable.” Id. ¶ 37.\\n\\n 4 Plaintiffs, who now reside lawfully in the United States, sued BNPP in the\\n\\n 5 Southern District of New York on behalf of a putative class of victims of the\\n\\n 6 genocide in Sudan. They allege, and we must accept as true, that BNPP\\n\\n 7 circumvented U.S. sanctions and provided Sudan with financial resources\\n\\n 8 knowing that Sudan was committing atrocities, knowing that the purpose of the\\n\\n 9 sanctions was to prevent Sudan from acquiring funds with which to carry out\\n\\n10 those atrocities, and knowing that Sudan’s likely purpose in using the U.S.\\n\\n11 financial markets for illegal oil sales was to acquire billions of U.S. dollars to\\n\\n12 purchase the weapons and materials used by militia forces.\\n\\n13 Specifically, Plaintiffs allege that they were the victims of atrocities\\n\\n14 including mass rape, torture, deliberate infection with HIV, and being forced to\\n\\n15 watch the murder and rape of their family members. Second Amended\\n\\n16 Complaint ¶¶ 22–52, Kashef v. BNP Paribas SA, 316 F. Supp. 3d 770 (S.D.N.Y.\\n\\n17 2018) (No. 16-cv-03228-AJN), ECF No. 49. One plaintiff alleges that militia forces\\n\\n18 invaded her home, brutally beat her family, and murdered her father in front of\\n\\n\\n\\n 8\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 her children. Id. ¶ 37. She and her children found themselves in camps where\\n\\n 2 they were detained separately, starved, tortured, subjected to chemical weapons,\\n\\n 3 beaten, and raped. Id. Two of her children died in the camps, and the plaintiff\\n\\n 4 was forced to search for them among dead bodies being held in refrigerators on\\n\\n 5 site. Id. Her teenage son, she alleges, had been locked alive in a freezer for three\\n\\n 6 days. Id.\\n\\n 7 Another plaintiff alleges that she was kidnapped from her home,\\n\\n 8 blindfolded, and locked in a room without food, light, or water. Id. ¶ 41. She\\n\\n 9 was raped and tortured for days, causing infection with HIV and the miscarriage\\n\\n10 of an existing pregnancy. Id. Her husband was arrested, tortured, and\\n\\n11 eventually murdered. Id. All the Plaintiffs allege similar injuries at the hands of\\n\\n12 militia forces, which were armed and dispatched using the money and resources\\n\\n13 made available as a consequence of BNPP’s violation of U.S. sanctions on Sudan.\\n\\n14 In the Second Amended Complaint (the “SAC”), Plaintiffs asserted twenty\\n\\n15 claims arising under New York tort law. 3 Claims 1, 2, 15, and 16 were primary\\n\\n16 liability claims that BNPP was negligent per se and inflicted emotional distress\\n\\n17 on Plaintiffs. Claims 3 through 14, 19, and 20 were secondary liability claims that\\n\\n\\n 3\\n The District Court dismissed Claim 17, for commercial bad faith, and Claim 18, for unjust enrichment,\\n for failure to state a claim. Plaintiffs do not challenge the dismissal of these claims on appeal.\\n\\n\\n 9\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 BNPP conspired with or aided and abetted Sudan in its commission of battery,\\n\\n 2 battery in performance of public duty, assault, false arrest and imprisonment,\\n\\n 3 conversion through wrongful taking, conversion through wrongful detention,\\n\\n 4 and wrongful death.\\n\\n 5 BNPP moved to dismiss the claims. The District Court dismissed Claims 1\\n\\n 6 through 16, 19, and 20 under the act of state doctrine. Kashef, 316 F. Supp. 3d at\\n\\n 7 779. The Court reasoned that determining BNPP’s wrongdoing under New York\\n\\n 8 tort law would require it to either find an underlying tort committed by the\\n\\n 9 Sudanese regime (for secondary liability claims) or inquire into the harm to\\n\\n10 Plaintiffs caused by the regime (for primary liability claims). Id. at 777–78. The\\n\\n11 District Court concluded that it was prohibited from so doing by the act of state\\n\\n12 doctrine, which forbids U.S. courts from questioning the validity of official acts of\\n\\n13 foreign sovereigns. Id. As applied to only the Adult Plaintiffs,4 the District Court\\n\\n14 alternatively dismissed Claims 3 through 10 and 15 as untimely under New\\n\\n15 York’s one-year statute of limitations for intentional torts. Id. at 782. The District\\n\\n16 Court declined to apply New York C.P.L.R. § 213-b, under which the Adult\\n\\n17 Plaintiffs’ claims would be timely. Id. at 780–81.\\n\\n\\n\\n 4\\n Plaintiffs Sara Noureldirz Abdalla and Amir Ahmed were minors when they were injured. The\\n remaining Plaintiffs were over the age of 18 at the time of their alleged injuries.\\n\\n 10\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Plaintiffs appeal, arguing that the District Court erred in its application of\\n\\n 2 the act of state doctrine and in its conclusion that the Adult Plaintiffs’ claims are\\n\\n 3 time-barred. We agree and we vacate the judgment.\\n\\n 4 STANDARD OF REVIEW\\n\\n 5 We review de novo a district court’s grant of a motion to dismiss brought\\n\\n 6 under Rule 12(b)(6), accepting all factual allegations in the complaint as true and\\n\\n 7 drawing all reasonable inferences in the plaintiff’s favor. Nicosia v. Amazon.com,\\n\\n 8 Inc., 834 F.3d 220, 230 (2d Cir. 2016). “To survive a motion to dismiss, a\\n\\n 9 complaint must contain sufficient factual matter, accepted as true, to state a claim\\n\\n10 to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)\\n\\n11 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).\\n\\n12 DISCUSSION\\n\\n13 Act of State Doctrine\\n\\n14 The act of state doctrine bars U.S. courts from declaring invalid, and thus\\n\\n15 ineffective as a rule of decision, the official act of a foreign sovereign. W.S.\\n\\n16 Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 405 (1990). “Whether\\n\\n17 to invoke the act of state doctrine is ultimately and always a judicial question.”\\n\\n18 Republic of Philippines v. Marcos, 806 F.2d 344, 358 (2d Cir. 1986). The doctrine has\\n\\n\\n\\n 11\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 been applied where, for instance, parties sought to challenge the validity of\\n\\n 2 formalized, official expropriation decrees of foreign sovereigns. See, e.g., Banco\\n\\n 3 Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Similarly, the doctrine has been\\n\\n 4 applied where parties challenged the official orders of a sovereign’s highest\\n\\n 5 commander. See Underhill v. Hernandez, 168 U.S. 250 (1897).\\n\\n 6 The Supreme Court has made clear that the act of state doctrine has\\n\\n 7 important boundaries. It is not a categorical rule of abstention that prohibits\\n\\n 8 courts from deciding cases or controversies whenever issues of foreign relations\\n\\n 9 arise. Kirkpatrick, 493 U.S. at 409 (“The act of state doctrine does not establish an\\n\\n10 exception for cases and controversies that may embarrass foreign\\n\\n11 governments.”). The doctrine should not, the Supreme Court instructs, be\\n\\n12 casually expanded “into new and uncharted fields.” Id.\\n\\n13 In dismissing Plaintiffs’ claims, the District Court reasoned that “claims\\n\\n14 against private entities may be barred when the causal chain between a\\n\\n15 defendant’s alleged conduct and plaintiff’s injury cannot be determined without\\n\\n16 an inquiry into the motives of the foreign government.” Kashef, 316 F. Supp. 3d\\n\\n17 at 776. In so concluding, the District Court painted with too broad a brush and\\n\\n\\n\\n\\n 12\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 misapplied the doctrine in the exact way the Supreme Court warned against in\\n\\n 2 Kirkpatrick.\\n\\n 3 I\\n\\n 4 The Supreme Court has determined that when the validity of a foreign\\n\\n 5 state’s action is not the question being litigated, and the inquiry is simply\\n\\n 6 whether the conduct in question occurred, the act of state doctrine is not\\n\\n 7 implicated. Kirkpatrick, 493 U.S. at 405. In other words, the doctrine applies only\\n\\n 8 when “the relief sought or the defense [raised] would have required a court in the\\n\\n 9 United States to declare invalid the official act of a foreign sovereign performed\\n\\n10 within its own territory.” Id. at 405 (emphasis added). Adjudicating the claims\\n\\n11 in this action involves no such requirement.\\n\\n12 In Kirkpatrick, U.S. defendants had secured a contract with the Nigerian\\n\\n13 government by promising to pay a bribe. Id. at 402. Following an investigation,\\n\\n14 defendants pled guilty to violations of the Foreign Corrupt Practices Act. Id. The\\n\\n15 plaintiff, an unsuccessful bidder for the Nigerian government contract, then sued\\n\\n16 the defendants under federal and state racketeering and unfair competition\\n\\n17 statutes. Id. To prevail, the plaintiff had to prove that Nigerian officials received\\n\\n18 an unlawful bribe. Id. at 406.\\n\\n\\n\\n 13\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 The Supreme Court held that the act of state doctrine did not bar the\\n\\n 2 claims because, in considering them, the district court was not required to rule on\\n\\n 3 the legality of the contract itself. Id. at 406. It was only required to determine\\n\\n 4 whether Nigerian officials had received bribes, an inquiry that did not trigger the\\n\\n 5 act of state doctrine even if it “would impugn or question the nobility of a foreign\\n\\n 1 nation’s motivations.” Id. at 408.5 In fashioning the contours of the doctrine,\\n\\n 2 Justice Scalia, writing for the Court, drew from Sharon v. Time, Inc., 599 F. Supp.\\n\\n 3 538 (S.D.N.Y. 1984), for the proposition that the act of state doctrine is not\\n\\n 4 implicated when the litigated issue “is not whether the alleged acts are valid, but\\n\\n 5 whether they occurred.” Kirkpatrick, 493 U.S. at 406 (quoting Time, 599 F. Supp. at\\n\\n 6 546). In Time, Ariel Sharon, then-Minister of Defense of Israel, sued Time\\n\\n 7 Magazine for defamation following Time’s coverage of a report on Sharon’s\\n\\n 8 alleged participation in the murder of innocent Palestinians. 599 F. Supp. at 542.\\n\\n 9 To adjudicate the claim, the district court had to determine whether claims that\\n\\n10 Sharon was complicit in murder were false, which would implicate the actions of\\n\\n\\n\\n 5\\n Moreover, the Supreme Court explained that even though a finding that Nigerian officials had\\n received bribes supported a finding that the contract was invalid, the act of state doctrine was still not\\n implicated because the parties never formally disputed the legality of the contract itself. See Kirkpatrick, 493\\n U.S. at 406 (“Specifically, [petitioners] note that in order to prevail respondent must prove that petitioner\\n Kirkpatrick made, and Nigerian officials received, payments that violate Nigerian law, which would, they\\n assert, support a finding that the contract is invalid under Nigerian law. Assuming that to be true, it still does\\n not suffice [to trigger the act of state doctrine].”).\\n\\n 14\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Israel and Lebanon. Id. at 553. The district court determined that the act of state\\n\\n 2 doctrine did not apply, reasoning that\\n\\n 3 No one is suggesting that these acts—by which Time claims Sharon\\n 4 condoned the massacre of unarmed noncombatant civilians—have\\n 5 validity in the sense that they cannot be attacked. All agree—Israel,\\n 6 the United States, and the world community—that such actions, if\\n 7 they occurred, would be illegal and abhorrent. The issue in this\\n 8 litigation is not whether such acts are valid, but whether they\\n 9 occurred.\\n\\n10 Id. at 546.\\n\\n11 The reasoning of Kirkpatrick is directly applicable to this case. By BNPP’s\\n\\n12 own concession, the acts of Sudan to which BNPP asks us to defer are the\\n\\n13 atrocities committed against innocent civilians. Oral Arg. R. at 23:14–40 (“The\\n\\n14 alleged official acts are . . . running their militias that inflicted violence on these\\n\\n15 plaintiffs . . . other acts of sexual violence, mass rape, and . . . genocide.”). No\\n\\n16 one here—the parties, the U.S. government, Sudan (in its own Constitution), or\\n\\n17 the international community—contends that genocide, mass rape, and ethnic\\n\\n18 cleansing are “valid.”6 Instead, the issue is simply whether the atrocities\\n\\n 6\\n\\n See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted) (declaring Sudan’s genocide); S. Con. Res.\\n 133, 108th Cong. (2004) (enacted) (same); Exec. Order No. 13,412 (sanctioning Sudan for its violations of\\n human rights); THE INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN (2005); CONSTITUTION OF THE\\n REPUBLIC OF SUDAN (1998); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1210 (9th Cir. 2007) (discussing how\\n violations of jus cogens norms cannot constitute rules of decision entitled to act-of-state deference); Warfaa v.\\n Ali, 33 F. Supp. 3d 653, 661–62 (E.D. Va. 2014) (same), aff’d, 811 F.3d 653 (4th Cir. 2016); Garcia v. Chapman, 911\\n F. Supp. 2d 1222, 1242 (S.D. Fla. 2012) (same).\\n\\n\\n 15\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 occurred. This inquiry into occurrence rather than validity is precisely what the\\n\\n 2 Supreme Court in Kirkpatrick held was not precluded by the act of state doctrine.\\n\\n 3 To be sure, to prevail on their secondary liability claims against BNPP, the\\n\\n 4 plaintiffs will need to establish primary torts committed by the Sudanese regime.\\n\\n 5 Proof of these primary tort claims, as the SAC suggests, will be based on the\\n\\n 6 widespread and widely known genocide perpetrated in Sudan. The act of state\\n\\n 7 doctrine cannot shield this genocide from scrutiny by the courts of the United\\n\\n 8 States because, as we will discuss in depth below, both Sudan’s own laws and a\\n\\n 9 universal international consensus prohibit us from deeming genocide an “official\\n\\n10 act” of Sudan, or for that matter, of any state, that could supply or support a rule\\n\\n11 of decision for our courts.\\n\\n12 II\\n\\n13 Kirkpatrick makes clear that the act of state doctrine only applies if\\n\\n14 adjudicating the claims in question would require a court to declare invalid a\\n\\n15 sovereign’s “official act.” Kirkpatrick, 493 U.S. at 405. To qualify as “official,” an\\n\\n16 act must be imbued with some level of formality, such as authorization by the\\n\\n17 foreign sovereign through an official “statute, decree, order, or resolution.”\\n\\n18 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 (1976). A level\\n\\n\\n\\n 16\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 of formality has featured in every Supreme Court case in which the act of state\\n\\n 2 doctrine has been applied. For example, in Banco Nacional de Cuba v. Sabbatino,\\n\\n 3 the Supreme Court applied the doctrine to an official and formalized government\\n\\n 4 expropriation decree. 376 U.S. at 406; see also Oetjen v. Central Leather Co., 246 U.S.\\n\\n 5 297 (1918) (applying the act of state doctrine to an official government\\n\\n 6 expropriation decree); Ricaud v. American Metal Co., 246 U.S. 304 (1918) (same).\\n\\n 7 Similarly, in Underhill v. Hernandez, the Supreme Court applied the act of state\\n\\n 8 doctrine to an official order by the highest military commander of a U.S.-\\n\\n 9 recognized government not to issue a passport. 168 U.S. at 254. Cases in our\\n\\n10 Circuit have also required this formality to trigger act-of-state deference.\\n\\n11 Konowaloff v. Metro. Museum of Art, 702 F.3d 140, 147 (2d Cir. 2012) (applying the\\n\\n12 act of state doctrine to an official government expropriation decree); Fed. Treasury\\n\\n13 Enter. Sojuzplodoimport v. Spirits Int’l B.V., 809 F.3d 737, 743 (2d Cir. 2016) (same),\\n\\n14 cert. denied, 137 S. Ct. 160 (2016).\\n\\n15 BNPP makes absolutely no showing that the atrocities committed against\\n\\n16 the Plaintiffs were the officially sanctioned policies of Sudan. They point to no\\n\\n17 statute, decree, order, resolution, or comparable evidence of sovereign\\n\\n18 authorization for any of the actions in question. On the contrary, the atrocities\\n\\n\\n\\n 17\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 alleged to have occurred unquestionably violated Sudanese law. See, e.g., THE\\n\\n 2 INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2;\\n\\n 3 CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2. In Filartiga v. Pena-Irala, we\\n\\n 4 made clear that “we doubt whether action by a state official in violation of [its]\\n\\n 5 Constitution and laws . . . and wholly unratified by [its] government, could\\n\\n 6 properly be characterized as an act of state.” 630 F.2d 876, 889 (2d Cir. 1980).\\n\\n 7 Similarly, in Kadic v. Karadzic, we noted that “the appellee has not had the\\n\\n 8 temerity to assert in this Court that the acts [of torture] he allegedly committed\\n\\n 9 are the officially approved policy of a state.” 70 F.3d 232, 250 (2d Cir. 1995).\\n\\n10 Given our precedent, acts that flagrantly violate a foreign state’s own laws\\n\\n11 cannot, at the same time, constitute official acts entitled to deference.\\n\\n12 Considering the lack of evidence introduced by BNPP that genocide is the\\n\\n13 official policy of Sudan, and the countervailing evidence that genocide blatantly\\n\\n14 violates Sudan’s own laws, we conclude that there is simply no “official act” that\\n\\n15 a court would be required to “declare invalid” in order to adjudicate Plaintiffs’\\n\\n16 claims. Kirkpatrick, 493 U.S. at 405.\\n\\n\\n\\n\\n 18\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 III\\n\\n 2 There is an equally steep hurdle that BNPP fails to overcome. We are\\n\\n 3 prohibited from deeming valid, for purposes of act-of-state deference, atrocities\\n\\n 4 such as genocide, mass rape, and ethnic cleansing, which violate jus cogens\\n\\n 5 norms. “A jus cogens norm, also known as a peremptory norm of international\\n\\n 6 law, is a norm accepted and recognized by the international community of states\\n\\n 7 as a whole as a norm from which no derogation is permitted and which can be\\n\\n 8 modified only by a subsequent norm of general international law having the\\n\\n 9 same character.” Carpenter v. Republic of Chile, 610 F.3d 776, 780 n.4 (2d Cir. 2010).\\n\\n10 “Jus cogens embraces customary laws considered binding on all nations, and is\\n\\n11 derived from values taken to be fundamental by the international community,\\n\\n12 rather than from the fortuitous or self-interested choices of nations.” Siderman de\\n\\n13 Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992). Accordingly, we\\n\\n14 have previously explained that these norms may not be violated, “irrespective of\\n\\n15 the consent or practice of a given State.” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 179\\n\\n16 (2d Cir. 2009). “Because jus cogens norms do not depend solely on the consent of\\n\\n17 states for their binding force, they enjoy the highest status within international\\n\\n18 law.” Siderman, 965 F.2d at 715.\\n\\n\\n\\n 19\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 There is no doubt that jus cogens norms were violated by the atrocities\\n\\n 2 occurring in Sudan. See, e.g., Abdullahi, 562 F.3d at 179; Pena-Irala, 630 F.2d at 884;\\n\\n 3 Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir.\\n\\n 4 1988); Siderman, 965 F.2d at 714; Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130\\n\\n 5 (E.D.N.Y. 2000); Hirsh v. State of Israel, 962 F. Supp. 377, 381 (S.D.N.Y. 1997), aff’d,\\n\\n 6 133 F.3d 907 (2d Cir. 1997). All of Plaintiffs’ claims are premised on these blatant\\n\\n 7 violations of jus cogens norms. A dismissal of the claims based on the act of state\\n\\n 8 doctrine would require, as a predicate, that the violations in question be\\n\\n 9 “deemed valid” by courts of this country, see Kirkpatrick, 493 U.S. at 409,\\n\\n10 regardless of the universal (and uncontroversial) understanding that genocide is\\n\\n11 unlawful. Because our precedent prohibits us from deeming valid violations of\\n\\n12 non-derogable jus cogens norms, “irrespective of the consent or practice of a given\\n\\n13 State,” Abdullahi, 562 F.3d at 179, we conclude that the atrocities to which BNPP\\n\\n14 asks us to defer can never be the basis of a rule of decision capable of triggering\\n\\n15 the act of state doctrine.7\\n\\n\\n\\n\\n 7\\n This conclusion is consistent with those of other courts that have directly considered the question.\\n See, e.g., Siderman, 965 F.2d at 714 (determining that torture violates jus cogens norm); Sarei v. Rio Tinto, PLC,\\n 671 F.3d 736, 757 (9th Cir. 2011), vacated on other grounds sub nom. Rio Tinto PLC v. Sarei, 569 U.S. 945 (2013);\\n Yousuf v. Samantar, 699 F.3d 763, 776 (4th Cir. 2012); Warfaa v. Ali, 33 F. Supp. at 661–62; Garcia v. Chapman,\\n 911 F. Supp. 2d at 1242; cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir. 2000).\\n\\n 20\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Timeliness\\n\\n 2 In addition to dismissing Plaintiffs’ claims under the act of state doctrine,\\n\\n 3 the District Court alternatively dismissed the intentional tort claims of the Adult\\n\\n 4 Plaintiffs as untimely under New York C.P.L.R. § 215. Plaintiffs argue that their\\n\\n 5 claims are timely under § 215(8)(a) or § 213-b. We hold that Plaintiffs’ claims are\\n\\n 6 timely under § 215(8)(a).\\n\\n 7 New York C.P.L.R. § 215(8)(a) provides:\\n\\n 8 Whenever it is shown that a criminal action against the same\\n 9 defendant has been commenced with respect to the event or\\n10 occurrence from which a claim governed by this section arises, the\\n11 plaintiff shall have at least one year from the termination of the\\n12 criminal action as defined in section 1.20 of the criminal procedure\\n13 law in which to commence the civil action notwithstanding that the\\n14 time in which to commence such action has already expired or has\\n15 less than a year remaining.\\n16\\n17 In Clemens v. Nealon, a New York appellate court explicitly rejected the\\n\\n18 theory that “the tolling provisions of CPLR 215(8) are exclusively for the benefit\\n\\n19 of the victims of the crime charged in the criminal proceeding.” 608 N.Y.S.2d\\n\\n20 370, 371 (App. Div. 1994). Instead, § 215(8)(a) is satisfied so long as “(1) a\\n\\n21 criminal action has been commenced, (2) against the same defendants, and (3)\\n\\n22 concerning the same event or transaction from which the civil action arose.” Id.\\n\\n23 The “termination of the criminal action” is measured from the date on which the\\n\\n\\n 21\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 defendant was sentenced. Dynamic Chemicals, Inc. v. Ackerman Mech. Servs., Inc.,\\n\\n 2 867 N.Y.S.2d 820, 822 (App. Div. 2008).\\n\\n 3 Plaintiffs did not raise the § 215(8)(a) argument before the District Court.\\n\\n 4 However, we have “discretion to consider waived arguments” and should\\n\\n 5 exercise this discretion “where the argument presents a question of law and there\\n\\n 6 is no need for additional fact-finding.” Bogle-Assegai v. Connecticut, 470 F.3d 498,\\n\\n 7 504 (2d Cir. 2006). In this case, the issue is a simple question of law—whether\\n\\n 8 § 215(8)(a) applies. The factual predicate for the question has been fully briefed\\n\\n 9 by both parties and there has been no contention that additional fact-finding is\\n\\n10 required or that any of the relevant facts are in dispute. We therefore exercise\\n\\n11 our discretion to consider the argument.\\n\\n12 BNPP is the same defendant that federal authorities prosecuted in a\\n\\n13 criminal action, satisfying the first and second prongs of § 215(8)(a).\\n\\n14 Additionally, the Plaintiffs’ causes of action arise out of the same occurrence as\\n\\n15 the criminal prosecution: BNPP’s conspiracy with Sudan to violate U.S.\\n\\n16 sanctions. Indeed, the Plaintiffs’ theory is that BNPP was illegally funding\\n\\n17 Sudan’s commission of atrocities by avoiding U.S. sanctions put in place to\\n\\n18 protect the Plaintiffs and the purported class, knowing that the funds would be\\n\\n\\n\\n 22\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n1 used by Sudan to continue the perpetration of atrocities. SAC ¶¶ 1–15. The third\\n\\n2 prong is thus satisfied and § 215(8)(a) applies. Because BNPP’s judgment of\\n\\n3 conviction was entered on May 1, 2015 and the Plaintiffs’ civil action was filed on\\n\\n4 April 29, 2016, the Adult Plaintiffs’ claims are timely under § 215(8)(a).\\n\\n5 CONCLUSION\\n\\n6 For the reasons set forth, we VACATE the judgment of the District Court\\n\\n7 and REMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399225/\", \"author_raw\": \"BARRINGTON D. PARKER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SACK"},"judge2":{"kind":"string","value":"PARKER"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4621972/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Entesar Osman KASHEF, Alfadel Mosabal, Abubakar Abakar, Siama Abdelnabi Hamad, Abbo Ahmed Abakar, Hawa Mohamed Omar, Jane Doe, Nyanriak Tingloth, Reverend Anderia Lual, Nicolas Hakim Lukudu, Turjuman Ramadan Adam, Johnmark Majuc, Joseph Jok, Halima Samuel Khalifa, Ambrose Martin Ulau, Sandi (Sunday) Georgari Marjan, Shafika G. Hassan, Jane Roe, Judy Doe, Sara Noureldirz Abdalla, and Amir Ahmed, Plaintiffs-Appellants, v. BNP PARIBAS S.A., a French Corporation, BNP Paribas North America, Inc., a Delaware Corporation, Does 1-10, and BNP Paribas S.A., New York Branch, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4\n 5\n 6 August Term 2018\n 7\n 8 No. 18-1304\n 9\n10 ENTESAR OSMAN KASHEF, ALFADEL MOSABAL, ABUBAKAR ABAKAR, SIAMA\n11 ABDELNABI HAMAD, ABBO AHMED ABAKAR, HAWA MOHAMED OMAR, JANE DOE,\n12 NYANRIAK TINGLOTH, REVEREND ANDERIA LUAL, NICOLAS HAKIM LUKUDU,\n13 TURJUMAN RAMADAN ADAM, JOHNMARK MAJUC, JOSEPH JOK, HALIMA SAMUEL\n14 KHALIFA, AMBROSE MARTIN ULAU, SANDI (SUNDAY) GEORGARI MARJAN, SHAFIKA\n15 G. HASSAN, JANE ROE, JUDY DOE, SARA NOURELDIRZ ABDALLA, and AMIR AHMED,\n16\n17 Plaintiffs-Appellants,\n18\n19 v.\n20\n21 BNP PARIBAS S.A., a French corporation, BNP PARIBAS NORTH AMERICA, INC., a\n22 Delaware corporation, DOES 1–10, and BNP PARIBAS S.A., NEW YORK BRANCH,\n23\n24 Defendants-Appellees.\n25\n26\n27 Appeal from the United States District Court\n28 for the Southern District of New York\n29 No. 16-cv-3228, Alison J. Nathan, District Judge, Presiding.\n30 (Argued December 12, 2018; Decided May 22, 2019)\n31\n32\n33\n34\n35\n\n\n 1\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 Before: SACK, PARKER, and CHIN, Circuit Judges.\n 2\n 3 Defendants were convicted of federal and state felonies arising from their\n 4 evasion of U.S. sanctions on Sudan. As Defendants admitted in pleading guilty,\n 5 they had knowledge of the genocide and ethnic cleansing being perpetrated by\n 6 the Sudanese regime and the consequences of providing the regime access to\n 7 additional financial resources, which could be used to escalate the commission of\n 8 atrocities. Nevertheless, Defendants illegally transacted with sanctioned entities\n 9 and actively attempted to evade U.S. detection, thus providing the regime access\n10 to U.S. financial markets. Plaintiffs, victims of the Sudanese regime’s atrocities,\n11 sued Defendants under New York tort law, alleging that Defendants conspired\n12 with and aided and abetted the Sudanese regime in its commission of\n13 widespread atrocities. The United States District Court for the Southern District\n14 of New York (Nathan, J.) dismissed Plaintiffs’ claims under Federal Rule of Civil\n15 Procedure 12(b)(6), reasoning that they were barred by the act of state doctrine\n16 and, in the alternative, were untimely. We VACATE and REMAND.\n17\n18\n19 ________\n20\n21 TOBIAS BARRINGTON WOLFF, University of Pennsylvania Law\n22 School, Philadelphia, PA (Kathryn Lee Boyd & Thomas B.\n23 Watson, McKool Smith, PC, Los Angeles, CA, on the brief), for\n24 Plaintiffs-Appellants.\n25\n26 CARMINE D. BOCCUZZI, JR. (Jonathan I. Blackman & Avram E.\n27 Luft, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New\n28 York, NY, for Defendants-Appellees.\n29\n30 ________\n31\n32\n33\n\n34\n\n\n\n 2\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 BARRINGTON D. PARKER, Circuit Judge:\n\n 2 Defendant BNP Paribas S.A., a French corporation, is the parent company\n\n 3 of various BNP Paribas subsidiaries across the world, including the other named\n\n 4 Defendants in this action (collectively “BNPP”). BNPP is a global leader in\n\n 5 banking and financial services, operating in 73 countries, including in the United\n\n 6 States. BNPP’s annual revenue exceeds 40 billion euros and its total assets\n\n 7 amount to approximately 1.9 trillion euros, making it one of the five largest\n\n 8 banks in the world.1\n\n 9 Following a guilty plea, BNPP was convicted of federal and state felonies\n\n10 for evading U.S. sanctions on Sudan. Plaintiffs, who are alleged victims of the\n\n11 Sudanese regime’s atrocities, sued BNPP in the United States District Court for\n\n12 the Southern District of New York, bringing various tort claims under New York\n\n13 law. They allege that BNPP conspired with and aided and abetted the Sudanese\n\n14 regime in its commission of widespread atrocities, including murder, mass rape,\n\n15 torture, and deliberate infection with HIV, among others. They also allege claims\n\n16 of negligence per se, intentional infliction of emotional distress, and negligent\n\n17 infliction of emotional distress.\n\n\n\n 1\n The information on BNPP’s structure, operations, and finances are publicly known and available\n through BNPP’s website and its various filings with regulatory agencies.\n\n 3\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 The District Court (Nathan, J.) dismissed Plaintiffs’ claims under Federal\n\n 2 Rule of Civil Procedure 12(b)(6), reasoning that they were barred by the act of\n\n 3 state doctrine and, for the Plaintiffs who were adults at the time of injury (the\n\n 4 “Adult Plaintiffs”), otherwise untimely. Because we conclude that the District\n\n 5 Court misapplied the act of state doctrine and erroneously determined that the\n\n 6 Adult Plaintiffs’ claims were untimely, we vacate and remand for further\n\n 7 proceedings.\n\n 8 BACKGROUND\n\n 9 The atrocities taking place in Sudan are widely known and have been\n\n10 condemned by both the United States and the international community as\n\n11 genocide. See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted); S. Con. Res.\n\n12 133, 108th Cong. (2004) (enacted). In 1997 and 2006, pursuant to the International\n\n13 Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., the U.S.\n\n14 Government imposed sanctions on Sudan aimed at halting the genocide. See\n\n15 Exec. Order No. 13,412 § 1, 71 Fed. Reg. 61,369 (Oct. 17, 2006); Exec. Order No.\n\n16 13,067 § 1, 62 Fed. Reg. 59,989 (Nov. 5, 1997); see generally 31 C.F.R. pt. 538.\n\n17 Nevertheless, as BNPP itself admitted, from 2002 to 2007, it “conspired with\n\n18 numerous Sudanese banks and entities as well as financial institutions outside of\n\n\n\n 4\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 Sudan to violate the U.S. embargo by providing Sudanese banks and entities\n\n 2 access to the U.S. financial system.” Stipulated Statement of Facts ¶ 17, United\n\n 3 States v. BNP Paribas, S.A., No. 14-cr-00460-LGS (S.D.N.Y. 2015), ECF No. 13 Ex. 2.\n\n 4 In 2015, the Federal Government and New York State secured convictions\n\n 5 of BNPP for federal and state felonies. BNPP pled guilty to conspiracy to commit\n\n 6 an offense against the United States in violation of 18 U.S.C. § 371, by conspiring\n\n 7 to violate the IEEPA and the Trading with the Enemy Act, 50 U.S.C. § 4303 et seq.\n\n 8 BNPP also pled guilty to New York state crimes of falsifying business records in\n\n 9 the first degree, in violation of Penal Law § 175.10, and conspiracy in the fifth\n\n10 degree, in violation of Penal Law § 105.05. BNPP was required to pay almost\n\n11 nine billion dollars in forfeitures and fines, the largest financial penalty ever\n\n12 imposed in a criminal case.2\n\n13 BNPP admitted, in a Stipulated Statement of Facts (the “SSOF”), that the\n\n14 allegations in the federal and state criminal informations were true, as were\n\n15 additional facts set forth in the SSOF, and that had the matter gone to trial, the\n\n16 Federal Government and New York State would have proven them beyond a\n\n17 reasonable doubt. BNPP conceded that it “continued to process transactions\n\n18 involving Sudanese Sanctioned Entities—despite being well aware that its\n 2\n Press Release, Dep’t of Justice, BNP Paribas Sentenced for Conspiring to Violate the International Emergency\n Economic Powers Act and the Trading with the Enemy Act (May 1, 2015).\n\n 5\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 conduct violated U.S. law—because the business was profitable” and BNPP “did\n\n 2 not want to risk its longstanding relationship with Sudanese clients.” SSOF ¶ 24;\n\n 3 see also id. ¶¶ 59–73 (outlining the evidence of BNPP’s knowledge of its illegal\n\n 4 conduct).\n\n 5 BNPP admitted that it employed many sophisticated methods to violate\n\n 6 U.S. law. First, it “carried out transactions with Sanctioned Entities and evaded\n\n 7 the U.S. embargo” against Sudan by “deliberately modifying and omitting\n\n 8 references to Sudan in the payment messages accompanying these transactions.”\n\n 9 Id. ¶ 18. Second, in cooperation with Sudanese entities, it utilized complicated\n\n10 payment structures with no legitimate business purpose to mask transaction\n\n11 information that could trigger scrutiny. Id. ¶ 16. Third, it moved “illicit\n\n12 transactions through unaffiliated satellite banks” to “disguise the involvement of\n\n13 Sanctioned Entities in U.S. dollar transactions,” id. ¶¶ 18, 23–26, and went as far\n\n14 as coordinating with satellite banks to institute waiting periods between transfers\n\n15 so that “U.S. authorities would be unable to link the payments to the involved\n\n16 Sanctioned Entit[ies],” id. ¶ 24.\n\n17 BNPP also conceded that it had knowledge of the atrocities being\n\n18 committed in Sudan and of the consequences of providing Sudan access to U.S.\n\n\n\n 6\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 financial markets. Specifically, BNPP admitted that its “central role in providing\n\n 2 Sudanese financial institutions access to the U.S. financial system, despite the\n\n 3 Government of Sudan’s role in supporting terrorism and committing human\n\n 4 rights abuses, was recognized by BNPP employees.” Id. ¶ 20. For example, in\n\n 5 2004, a manager at BNPP described the political environment in Sudan as\n\n 6 “dominated by the Darfur crisis” and called it a “humanitarian catastrophe.” Id.\n\n 7 In April 2006, a senior BNPP compliance officer stated in a memorandum that\n\n 8 “the growth of revenue from oil is unlikely to help end the conflict” and that “it\n\n 9 is probable that Sudan will remain torn up by insurrections and resulting\n\n10 repressive measures for a long time.” Id. In 2007, a BNPP compliance officer told\n\n11 other high-level compliance and legal personnel that the Sudanese entities with\n\n12 which BNPP dealt “play a pivotal part in the support of the Sudanese\n\n13 government which . . . has hosted Osama Bin Laden and refuses United Nations\n\n14 intervention in Darfur.” Id. A few months later, a BNPP executive warned in a\n\n15 memorandum that “in a context where the International Community puts\n\n16 pressure to bring an end to the dramatic situation in Darfur, no one would\n\n17 understand why BNP Paribas persists in Sudan which could be interpreted as\n\n18 supporting the leaders in place.” Id. The SSOF makes clear that despite BNPP’s\n\n\n\n 7\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 understanding of the likely consequences of its involvement with Sudan, it\n\n 2 persisted in illegal conduct on a wide scale because its “business [with Sudan]\n\n 3 was profitable.” Id. ¶ 37.\n\n 4 Plaintiffs, who now reside lawfully in the United States, sued BNPP in the\n\n 5 Southern District of New York on behalf of a putative class of victims of the\n\n 6 genocide in Sudan. They allege, and we must accept as true, that BNPP\n\n 7 circumvented U.S. sanctions and provided Sudan with financial resources\n\n 8 knowing that Sudan was committing atrocities, knowing that the purpose of the\n\n 9 sanctions was to prevent Sudan from acquiring funds with which to carry out\n\n10 those atrocities, and knowing that Sudan’s likely purpose in using the U.S.\n\n11 financial markets for illegal oil sales was to acquire billions of U.S. dollars to\n\n12 purchase the weapons and materials used by militia forces.\n\n13 Specifically, Plaintiffs allege that they were the victims of atrocities\n\n14 including mass rape, torture, deliberate infection with HIV, and being forced to\n\n15 watch the murder and rape of their family members. Second Amended\n\n16 Complaint ¶¶ 22–52, Kashef v. BNP Paribas SA, 316 F. Supp. 3d 770 (S.D.N.Y.\n\n17 2018) (No. 16-cv-03228-AJN), ECF No. 49. One plaintiff alleges that militia forces\n\n18 invaded her home, brutally beat her family, and murdered her father in front of\n\n\n\n 8\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 her children. Id. ¶ 37. She and her children found themselves in camps where\n\n 2 they were detained separately, starved, tortured, subjected to chemical weapons,\n\n 3 beaten, and raped. Id. Two of her children died in the camps, and the plaintiff\n\n 4 was forced to search for them among dead bodies being held in refrigerators on\n\n 5 site. Id. Her teenage son, she alleges, had been locked alive in a freezer for three\n\n 6 days. Id.\n\n 7 Another plaintiff alleges that she was kidnapped from her home,\n\n 8 blindfolded, and locked in a room without food, light, or water. Id. ¶ 41. She\n\n 9 was raped and tortured for days, causing infection with HIV and the miscarriage\n\n10 of an existing pregnancy. Id. Her husband was arrested, tortured, and\n\n11 eventually murdered. Id. All the Plaintiffs allege similar injuries at the hands of\n\n12 militia forces, which were armed and dispatched using the money and resources\n\n13 made available as a consequence of BNPP’s violation of U.S. sanctions on Sudan.\n\n14 In the Second Amended Complaint (the “SAC”), Plaintiffs asserted twenty\n\n15 claims arising under New York tort law. 3 Claims 1, 2, 15, and 16 were primary\n\n16 liability claims that BNPP was negligent per se and inflicted emotional distress\n\n17 on Plaintiffs. Claims 3 through 14, 19, and 20 were secondary liability claims that\n\n\n 3\n The District Court dismissed Claim 17, for commercial bad faith, and Claim 18, for unjust enrichment,\n for failure to state a claim. Plaintiffs do not challenge the dismissal of these claims on appeal.\n\n\n 9\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 BNPP conspired with or aided and abetted Sudan in its commission of battery,\n\n 2 battery in performance of public duty, assault, false arrest and imprisonment,\n\n 3 conversion through wrongful taking, conversion through wrongful detention,\n\n 4 and wrongful death.\n\n 5 BNPP moved to dismiss the claims. The District Court dismissed Claims 1\n\n 6 through 16, 19, and 20 under the act of state doctrine. Kashef, 316 F. Supp. 3d at\n\n 7 779. The Court reasoned that determining BNPP’s wrongdoing under New York\n\n 8 tort law would require it to either find an underlying tort committed by the\n\n 9 Sudanese regime (for secondary liability claims) or inquire into the harm to\n\n10 Plaintiffs caused by the regime (for primary liability claims). Id. at 777–78. The\n\n11 District Court concluded that it was prohibited from so doing by the act of state\n\n12 doctrine, which forbids U.S. courts from questioning the validity of official acts of\n\n13 foreign sovereigns. Id. As applied to only the Adult Plaintiffs,4 the District Court\n\n14 alternatively dismissed Claims 3 through 10 and 15 as untimely under New\n\n15 York’s one-year statute of limitations for intentional torts. Id. at 782. The District\n\n16 Court declined to apply New York C.P.L.R. § 213-b, under which the Adult\n\n17 Plaintiffs’ claims would be timely. Id. at 780–81.\n\n\n\n 4\n Plaintiffs Sara Noureldirz Abdalla and Amir Ahmed were minors when they were injured. The\n remaining Plaintiffs were over the age of 18 at the time of their alleged injuries.\n\n 10\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 Plaintiffs appeal, arguing that the District Court erred in its application of\n\n 2 the act of state doctrine and in its conclusion that the Adult Plaintiffs’ claims are\n\n 3 time-barred. We agree and we vacate the judgment.\n\n 4 STANDARD OF REVIEW\n\n 5 We review de novo a district court’s grant of a motion to dismiss brought\n\n 6 under Rule 12(b)(6), accepting all factual allegations in the complaint as true and\n\n 7 drawing all reasonable inferences in the plaintiff’s favor. Nicosia v. Amazon.com,\n\n 8 Inc., 834 F.3d 220, 230 (2d Cir. 2016). “To survive a motion to dismiss, a\n\n 9 complaint must contain sufficient factual matter, accepted as true, to state a claim\n\n10 to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)\n\n11 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).\n\n12 DISCUSSION\n\n13 Act of State Doctrine\n\n14 The act of state doctrine bars U.S. courts from declaring invalid, and thus\n\n15 ineffective as a rule of decision, the official act of a foreign sovereign. W.S.\n\n16 Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 405 (1990). “Whether\n\n17 to invoke the act of state doctrine is ultimately and always a judicial question.”\n\n18 Republic of Philippines v. Marcos, 806 F.2d 344, 358 (2d Cir. 1986). The doctrine has\n\n\n\n 11\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 been applied where, for instance, parties sought to challenge the validity of\n\n 2 formalized, official expropriation decrees of foreign sovereigns. See, e.g., Banco\n\n 3 Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Similarly, the doctrine has been\n\n 4 applied where parties challenged the official orders of a sovereign’s highest\n\n 5 commander. See Underhill v. Hernandez, 168 U.S. 250 (1897).\n\n 6 The Supreme Court has made clear that the act of state doctrine has\n\n 7 important boundaries. It is not a categorical rule of abstention that prohibits\n\n 8 courts from deciding cases or controversies whenever issues of foreign relations\n\n 9 arise. Kirkpatrick, 493 U.S. at 409 (“The act of state doctrine does not establish an\n\n10 exception for cases and controversies that may embarrass foreign\n\n11 governments.”). The doctrine should not, the Supreme Court instructs, be\n\n12 casually expanded “into new and uncharted fields.” Id.\n\n13 In dismissing Plaintiffs’ claims, the District Court reasoned that “claims\n\n14 against private entities may be barred when the causal chain between a\n\n15 defendant’s alleged conduct and plaintiff’s injury cannot be determined without\n\n16 an inquiry into the motives of the foreign government.” Kashef, 316 F. Supp. 3d\n\n17 at 776. In so concluding, the District Court painted with too broad a brush and\n\n\n\n\n 12\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 misapplied the doctrine in the exact way the Supreme Court warned against in\n\n 2 Kirkpatrick.\n\n 3 I\n\n 4 The Supreme Court has determined that when the validity of a foreign\n\n 5 state’s action is not the question being litigated, and the inquiry is simply\n\n 6 whether the conduct in question occurred, the act of state doctrine is not\n\n 7 implicated. Kirkpatrick, 493 U.S. at 405. In other words, the doctrine applies only\n\n 8 when “the relief sought or the defense [raised] would have required a court in the\n\n 9 United States to declare invalid the official act of a foreign sovereign performed\n\n10 within its own territory.” Id. at 405 (emphasis added). Adjudicating the claims\n\n11 in this action involves no such requirement.\n\n12 In Kirkpatrick, U.S. defendants had secured a contract with the Nigerian\n\n13 government by promising to pay a bribe. Id. at 402. Following an investigation,\n\n14 defendants pled guilty to violations of the Foreign Corrupt Practices Act. Id. The\n\n15 plaintiff, an unsuccessful bidder for the Nigerian government contract, then sued\n\n16 the defendants under federal and state racketeering and unfair competition\n\n17 statutes. Id. To prevail, the plaintiff had to prove that Nigerian officials received\n\n18 an unlawful bribe. Id. at 406.\n\n\n\n 13\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 The Supreme Court held that the act of state doctrine did not bar the\n\n 2 claims because, in considering them, the district court was not required to rule on\n\n 3 the legality of the contract itself. Id. at 406. It was only required to determine\n\n 4 whether Nigerian officials had received bribes, an inquiry that did not trigger the\n\n 5 act of state doctrine even if it “would impugn or question the nobility of a foreign\n\n 1 nation’s motivations.” Id. at 408.5 In fashioning the contours of the doctrine,\n\n 2 Justice Scalia, writing for the Court, drew from Sharon v. Time, Inc., 599 F. Supp.\n\n 3 538 (S.D.N.Y. 1984), for the proposition that the act of state doctrine is not\n\n 4 implicated when the litigated issue “is not whether the alleged acts are valid, but\n\n 5 whether they occurred.” Kirkpatrick, 493 U.S. at 406 (quoting Time, 599 F. Supp. at\n\n 6 546). In Time, Ariel Sharon, then-Minister of Defense of Israel, sued Time\n\n 7 Magazine for defamation following Time’s coverage of a report on Sharon’s\n\n 8 alleged participation in the murder of innocent Palestinians. 599 F. Supp. at 542.\n\n 9 To adjudicate the claim, the district court had to determine whether claims that\n\n10 Sharon was complicit in murder were false, which would implicate the actions of\n\n\n\n 5\n Moreover, the Supreme Court explained that even though a finding that Nigerian officials had\n received bribes supported a finding that the contract was invalid, the act of state doctrine was still not\n implicated because the parties never formally disputed the legality of the contract itself. See Kirkpatrick, 493\n U.S. at 406 (“Specifically, [petitioners] note that in order to prevail respondent must prove that petitioner\n Kirkpatrick made, and Nigerian officials received, payments that violate Nigerian law, which would, they\n assert, support a finding that the contract is invalid under Nigerian law. Assuming that to be true, it still does\n not suffice [to trigger the act of state doctrine].”).\n\n 14\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 Israel and Lebanon. Id. at 553. The district court determined that the act of state\n\n 2 doctrine did not apply, reasoning that\n\n 3 No one is suggesting that these acts—by which Time claims Sharon\n 4 condoned the massacre of unarmed noncombatant civilians—have\n 5 validity in the sense that they cannot be attacked. All agree—Israel,\n 6 the United States, and the world community—that such actions, if\n 7 they occurred, would be illegal and abhorrent. The issue in this\n 8 litigation is not whether such acts are valid, but whether they\n 9 occurred.\n\n10 Id. at 546.\n\n11 The reasoning of Kirkpatrick is directly applicable to this case. By BNPP’s\n\n12 own concession, the acts of Sudan to which BNPP asks us to defer are the\n\n13 atrocities committed against innocent civilians. Oral Arg. R. at 23:14–40 (“The\n\n14 alleged official acts are . . . running their militias that inflicted violence on these\n\n15 plaintiffs . . . other acts of sexual violence, mass rape, and . . . genocide.”). No\n\n16 one here—the parties, the U.S. government, Sudan (in its own Constitution), or\n\n17 the international community—contends that genocide, mass rape, and ethnic\n\n18 cleansing are “valid.”6 Instead, the issue is simply whether the atrocities\n\n 6\n\n See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted) (declaring Sudan’s genocide); S. Con. Res.\n 133, 108th Cong. (2004) (enacted) (same); Exec. Order No. 13,412 (sanctioning Sudan for its violations of\n human rights); THE INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN (2005); CONSTITUTION OF THE\n REPUBLIC OF SUDAN (1998); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1210 (9th Cir. 2007) (discussing how\n violations of jus cogens norms cannot constitute rules of decision entitled to act-of-state deference); Warfaa v.\n Ali, 33 F. Supp. 3d 653, 661–62 (E.D. Va. 2014) (same), aff’d, 811 F.3d 653 (4th Cir. 2016); Garcia v. Chapman, 911\n F. Supp. 2d 1222, 1242 (S.D. Fla. 2012) (same).\n\n\n 15\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 occurred. This inquiry into occurrence rather than validity is precisely what the\n\n 2 Supreme Court in Kirkpatrick held was not precluded by the act of state doctrine.\n\n 3 To be sure, to prevail on their secondary liability claims against BNPP, the\n\n 4 plaintiffs will need to establish primary torts committed by the Sudanese regime.\n\n 5 Proof of these primary tort claims, as the SAC suggests, will be based on the\n\n 6 widespread and widely known genocide perpetrated in Sudan. The act of state\n\n 7 doctrine cannot shield this genocide from scrutiny by the courts of the United\n\n 8 States because, as we will discuss in depth below, both Sudan’s own laws and a\n\n 9 universal international consensus prohibit us from deeming genocide an “official\n\n10 act” of Sudan, or for that matter, of any state, that could supply or support a rule\n\n11 of decision for our courts.\n\n12 II\n\n13 Kirkpatrick makes clear that the act of state doctrine only applies if\n\n14 adjudicating the claims in question would require a court to declare invalid a\n\n15 sovereign’s “official act.” Kirkpatrick, 493 U.S. at 405. To qualify as “official,” an\n\n16 act must be imbued with some level of formality, such as authorization by the\n\n17 foreign sovereign through an official “statute, decree, order, or resolution.”\n\n18 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 (1976). A level\n\n\n\n 16\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 of formality has featured in every Supreme Court case in which the act of state\n\n 2 doctrine has been applied. For example, in Banco Nacional de Cuba v. Sabbatino,\n\n 3 the Supreme Court applied the doctrine to an official and formalized government\n\n 4 expropriation decree. 376 U.S. at 406; see also Oetjen v. Central Leather Co., 246 U.S.\n\n 5 297 (1918) (applying the act of state doctrine to an official government\n\n 6 expropriation decree); Ricaud v. American Metal Co., 246 U.S. 304 (1918) (same).\n\n 7 Similarly, in Underhill v. Hernandez, the Supreme Court applied the act of state\n\n 8 doctrine to an official order by the highest military commander of a U.S.-\n\n 9 recognized government not to issue a passport. 168 U.S. at 254. Cases in our\n\n10 Circuit have also required this formality to trigger act-of-state deference.\n\n11 Konowaloff v. Metro. Museum of Art, 702 F.3d 140, 147 (2d Cir. 2012) (applying the\n\n12 act of state doctrine to an official government expropriation decree); Fed. Treasury\n\n13 Enter. Sojuzplodoimport v. Spirits Int’l B.V., 809 F.3d 737, 743 (2d Cir. 2016) (same),\n\n14 cert. denied, 137 S. Ct. 160 (2016).\n\n15 BNPP makes absolutely no showing that the atrocities committed against\n\n16 the Plaintiffs were the officially sanctioned policies of Sudan. They point to no\n\n17 statute, decree, order, resolution, or comparable evidence of sovereign\n\n18 authorization for any of the actions in question. On the contrary, the atrocities\n\n\n\n 17\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 alleged to have occurred unquestionably violated Sudanese law. See, e.g., THE\n\n 2 INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2;\n\n 3 CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2. In Filartiga v. Pena-Irala, we\n\n 4 made clear that “we doubt whether action by a state official in violation of [its]\n\n 5 Constitution and laws . . . and wholly unratified by [its] government, could\n\n 6 properly be characterized as an act of state.” 630 F.2d 876, 889 (2d Cir. 1980).\n\n 7 Similarly, in Kadic v. Karadzic, we noted that “the appellee has not had the\n\n 8 temerity to assert in this Court that the acts [of torture] he allegedly committed\n\n 9 are the officially approved policy of a state.” 70 F.3d 232, 250 (2d Cir. 1995).\n\n10 Given our precedent, acts that flagrantly violate a foreign state’s own laws\n\n11 cannot, at the same time, constitute official acts entitled to deference.\n\n12 Considering the lack of evidence introduced by BNPP that genocide is the\n\n13 official policy of Sudan, and the countervailing evidence that genocide blatantly\n\n14 violates Sudan’s own laws, we conclude that there is simply no “official act” that\n\n15 a court would be required to “declare invalid” in order to adjudicate Plaintiffs’\n\n16 claims. Kirkpatrick, 493 U.S. at 405.\n\n\n\n\n 18\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 III\n\n 2 There is an equally steep hurdle that BNPP fails to overcome. We are\n\n 3 prohibited from deeming valid, for purposes of act-of-state deference, atrocities\n\n 4 such as genocide, mass rape, and ethnic cleansing, which violate jus cogens\n\n 5 norms. “A jus cogens norm, also known as a peremptory norm of international\n\n 6 law, is a norm accepted and recognized by the international community of states\n\n 7 as a whole as a norm from which no derogation is permitted and which can be\n\n 8 modified only by a subsequent norm of general international law having the\n\n 9 same character.” Carpenter v. Republic of Chile, 610 F.3d 776, 780 n.4 (2d Cir. 2010).\n\n10 “Jus cogens embraces customary laws considered binding on all nations, and is\n\n11 derived from values taken to be fundamental by the international community,\n\n12 rather than from the fortuitous or self-interested choices of nations.” Siderman de\n\n13 Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992). Accordingly, we\n\n14 have previously explained that these norms may not be violated, “irrespective of\n\n15 the consent or practice of a given State.” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 179\n\n16 (2d Cir. 2009). “Because jus cogens norms do not depend solely on the consent of\n\n17 states for their binding force, they enjoy the highest status within international\n\n18 law.” Siderman, 965 F.2d at 715.\n\n\n\n 19\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 There is no doubt that jus cogens norms were violated by the atrocities\n\n 2 occurring in Sudan. See, e.g., Abdullahi, 562 F.3d at 179; Pena-Irala, 630 F.2d at 884;\n\n 3 Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir.\n\n 4 1988); Siderman, 965 F.2d at 714; Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130\n\n 5 (E.D.N.Y. 2000); Hirsh v. State of Israel, 962 F. Supp. 377, 381 (S.D.N.Y. 1997), aff’d,\n\n 6 133 F.3d 907 (2d Cir. 1997). All of Plaintiffs’ claims are premised on these blatant\n\n 7 violations of jus cogens norms. A dismissal of the claims based on the act of state\n\n 8 doctrine would require, as a predicate, that the violations in question be\n\n 9 “deemed valid” by courts of this country, see Kirkpatrick, 493 U.S. at 409,\n\n10 regardless of the universal (and uncontroversial) understanding that genocide is\n\n11 unlawful. Because our precedent prohibits us from deeming valid violations of\n\n12 non-derogable jus cogens norms, “irrespective of the consent or practice of a given\n\n13 State,” Abdullahi, 562 F.3d at 179, we conclude that the atrocities to which BNPP\n\n14 asks us to defer can never be the basis of a rule of decision capable of triggering\n\n15 the act of state doctrine.7\n\n\n\n\n 7\n This conclusion is consistent with those of other courts that have directly considered the question.\n See, e.g., Siderman, 965 F.2d at 714 (determining that torture violates jus cogens norm); Sarei v. Rio Tinto, PLC,\n 671 F.3d 736, 757 (9th Cir. 2011), vacated on other grounds sub nom. Rio Tinto PLC v. Sarei, 569 U.S. 945 (2013);\n Yousuf v. Samantar, 699 F.3d 763, 776 (4th Cir. 2012); Warfaa v. Ali, 33 F. Supp. at 661–62; Garcia v. Chapman,\n 911 F. Supp. 2d at 1242; cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir. 2000).\n\n 20\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 Timeliness\n\n 2 In addition to dismissing Plaintiffs’ claims under the act of state doctrine,\n\n 3 the District Court alternatively dismissed the intentional tort claims of the Adult\n\n 4 Plaintiffs as untimely under New York C.P.L.R. § 215. Plaintiffs argue that their\n\n 5 claims are timely under § 215(8)(a) or § 213-b. We hold that Plaintiffs’ claims are\n\n 6 timely under § 215(8)(a).\n\n 7 New York C.P.L.R. § 215(8)(a) provides:\n\n 8 Whenever it is shown that a criminal action against the same\n 9 defendant has been commenced with respect to the event or\n10 occurrence from which a claim governed by this section arises, the\n11 plaintiff shall have at least one year from the termination of the\n12 criminal action as defined in section 1.20 of the criminal procedure\n13 law in which to commence the civil action notwithstanding that the\n14 time in which to commence such action has already expired or has\n15 less than a year remaining.\n16\n17 In Clemens v. Nealon, a New York appellate court explicitly rejected the\n\n18 theory that “the tolling provisions of CPLR 215(8) are exclusively for the benefit\n\n19 of the victims of the crime charged in the criminal proceeding.” 608 N.Y.S.2d\n\n20 370, 371 (App. Div. 1994). Instead, § 215(8)(a) is satisfied so long as “(1) a\n\n21 criminal action has been commenced, (2) against the same defendants, and (3)\n\n22 concerning the same event or transaction from which the civil action arose.” Id.\n\n23 The “termination of the criminal action” is measured from the date on which the\n\n\n 21\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n 1 defendant was sentenced. Dynamic Chemicals, Inc. v. Ackerman Mech. Servs., Inc.,\n\n 2 867 N.Y.S.2d 820, 822 (App. Div. 2008).\n\n 3 Plaintiffs did not raise the § 215(8)(a) argument before the District Court.\n\n 4 However, we have “discretion to consider waived arguments” and should\n\n 5 exercise this discretion “where the argument presents a question of law and there\n\n 6 is no need for additional fact-finding.” Bogle-Assegai v. Connecticut, 470 F.3d 498,\n\n 7 504 (2d Cir. 2006). In this case, the issue is a simple question of law—whether\n\n 8 § 215(8)(a) applies. The factual predicate for the question has been fully briefed\n\n 9 by both parties and there has been no contention that additional fact-finding is\n\n10 required or that any of the relevant facts are in dispute. We therefore exercise\n\n11 our discretion to consider the argument.\n\n12 BNPP is the same defendant that federal authorities prosecuted in a\n\n13 criminal action, satisfying the first and second prongs of § 215(8)(a).\n\n14 Additionally, the Plaintiffs’ causes of action arise out of the same occurrence as\n\n15 the criminal prosecution: BNPP’s conspiracy with Sudan to violate U.S.\n\n16 sanctions. Indeed, the Plaintiffs’ theory is that BNPP was illegally funding\n\n17 Sudan’s commission of atrocities by avoiding U.S. sanctions put in place to\n\n18 protect the Plaintiffs and the purported class, knowing that the funds would be\n\n\n\n 22\n\f 18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n1 used by Sudan to continue the perpetration of atrocities. SAC ¶¶ 1–15. The third\n\n2 prong is thus satisfied and § 215(8)(a) applies. Because BNPP’s judgment of\n\n3 conviction was entered on May 1, 2015 and the Plaintiffs’ civil action was filed on\n\n4 April 29, 2016, the Adult Plaintiffs’ claims are timely under § 215(8)(a).\n\n5 CONCLUSION\n\n6 For the reasons set forth, we VACATE the judgment of the District Court\n\n7 and REMAND for further proceedings consistent with this opinion.\n\n\n\n\n 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Entesar Osman KASHEF, Alfadel Mosabal, Abubakar Abakar, Siama Abdelnabi Hamad, Abbo Ahmed Abakar, Hawa Mohamed Omar, Jane Doe, Nyanriak Tingloth, Reverend Anderia Lual, Nicolas Hakim Lukudu, Turjuman Ramadan Adam, Johnmark Majuc, Joseph Jok, Halima Samuel Khalifa, Ambrose Martin Ulau, Sandi (Sunday) Georgari Marjan, Shafika G. Hassan, Jane Roe, Judy Doe, Sara Noureldirz Abdalla, and Amir Ahmed, Plaintiffs-Appellants, v. BNP PARIBAS S.A., a French Corporation, BNP Paribas North America, Inc., a Delaware Corporation, Does 1-10, and BNP Paribas S.A., New York Branch, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term 2018\\n 7\\n 8 No. 18-1304\\n 9\\n10 ENTESAR OSMAN KASHEF, ALFADEL MOSABAL, ABUBAKAR ABAKAR, SIAMA\\n11 ABDELNABI HAMAD, ABBO AHMED ABAKAR, HAWA MOHAMED OMAR, JANE DOE,\\n12 NYANRIAK TINGLOTH, REVEREND ANDERIA LUAL, NICOLAS HAKIM LUKUDU,\\n13 TURJUMAN RAMADAN ADAM, JOHNMARK MAJUC, JOSEPH JOK, HALIMA SAMUEL\\n14 KHALIFA, AMBROSE MARTIN ULAU, SANDI (SUNDAY) GEORGARI MARJAN, SHAFIKA\\n15 G. HASSAN, JANE ROE, JUDY DOE, SARA NOURELDIRZ ABDALLA, and AMIR AHMED,\\n16\\n17 Plaintiffs-Appellants,\\n18\\n19 v.\\n20\\n21 BNP PARIBAS S.A., a French corporation, BNP PARIBAS NORTH AMERICA, INC., a\\n22 Delaware corporation, DOES 1–10, and BNP PARIBAS S.A., NEW YORK BRANCH,\\n23\\n24 Defendants-Appellees.\\n25\\n26\\n27 Appeal from the United States District Court\\n28 for the Southern District of New York\\n29 No. 16-cv-3228, Alison J. Nathan, District Judge, Presiding.\\n30 (Argued December 12, 2018; Decided May 22, 2019)\\n31\\n32\\n33\\n34\\n35\\n\\n\\n 1\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Before: SACK, PARKER, and CHIN, Circuit Judges.\\n 2\\n 3 Defendants were convicted of federal and state felonies arising from their\\n 4 evasion of U.S. sanctions on Sudan. As Defendants admitted in pleading guilty,\\n 5 they had knowledge of the genocide and ethnic cleansing being perpetrated by\\n 6 the Sudanese regime and the consequences of providing the regime access to\\n 7 additional financial resources, which could be used to escalate the commission of\\n 8 atrocities. Nevertheless, Defendants illegally transacted with sanctioned entities\\n 9 and actively attempted to evade U.S. detection, thus providing the regime access\\n10 to U.S. financial markets. Plaintiffs, victims of the Sudanese regime’s atrocities,\\n11 sued Defendants under New York tort law, alleging that Defendants conspired\\n12 with and aided and abetted the Sudanese regime in its commission of\\n13 widespread atrocities. The United States District Court for the Southern District\\n14 of New York (Nathan, J.) dismissed Plaintiffs’ claims under Federal Rule of Civil\\n15 Procedure 12(b)(6), reasoning that they were barred by the act of state doctrine\\n16 and, in the alternative, were untimely. We VACATE and REMAND.\\n17\\n18\\n19 ________\\n20\\n21 TOBIAS BARRINGTON WOLFF, University of Pennsylvania Law\\n22 School, Philadelphia, PA (Kathryn Lee Boyd & Thomas B.\\n23 Watson, McKool Smith, PC, Los Angeles, CA, on the brief), for\\n24 Plaintiffs-Appellants.\\n25\\n26 CARMINE D. BOCCUZZI, JR. (Jonathan I. Blackman & Avram E.\\n27 Luft, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New\\n28 York, NY, for Defendants-Appellees.\\n29\\n30 ________\\n31\\n32\\n33\\n\\n34\\n\\n\\n\\n 2\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 BARRINGTON D. PARKER, Circuit Judge:\\n\\n 2 Defendant BNP Paribas S.A., a French corporation, is the parent company\\n\\n 3 of various BNP Paribas subsidiaries across the world, including the other named\\n\\n 4 Defendants in this action (collectively “BNPP”). BNPP is a global leader in\\n\\n 5 banking and financial services, operating in 73 countries, including in the United\\n\\n 6 States. BNPP’s annual revenue exceeds 40 billion euros and its total assets\\n\\n 7 amount to approximately 1.9 trillion euros, making it one of the five largest\\n\\n 8 banks in the world.1\\n\\n 9 Following a guilty plea, BNPP was convicted of federal and state felonies\\n\\n10 for evading U.S. sanctions on Sudan. Plaintiffs, who are alleged victims of the\\n\\n11 Sudanese regime’s atrocities, sued BNPP in the United States District Court for\\n\\n12 the Southern District of New York, bringing various tort claims under New York\\n\\n13 law. They allege that BNPP conspired with and aided and abetted the Sudanese\\n\\n14 regime in its commission of widespread atrocities, including murder, mass rape,\\n\\n15 torture, and deliberate infection with HIV, among others. They also allege claims\\n\\n16 of negligence per se, intentional infliction of emotional distress, and negligent\\n\\n17 infliction of emotional distress.\\n\\n\\n\\n 1\\n The information on BNPP’s structure, operations, and finances are publicly known and available\\n through BNPP’s website and its various filings with regulatory agencies.\\n\\n 3\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 The District Court (Nathan, J.) dismissed Plaintiffs’ claims under Federal\\n\\n 2 Rule of Civil Procedure 12(b)(6), reasoning that they were barred by the act of\\n\\n 3 state doctrine and, for the Plaintiffs who were adults at the time of injury (the\\n\\n 4 “Adult Plaintiffs”), otherwise untimely. Because we conclude that the District\\n\\n 5 Court misapplied the act of state doctrine and erroneously determined that the\\n\\n 6 Adult Plaintiffs’ claims were untimely, we vacate and remand for further\\n\\n 7 proceedings.\\n\\n 8 BACKGROUND\\n\\n 9 The atrocities taking place in Sudan are widely known and have been\\n\\n10 condemned by both the United States and the international community as\\n\\n11 genocide. See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted); S. Con. Res.\\n\\n12 133, 108th Cong. (2004) (enacted). In 1997 and 2006, pursuant to the International\\n\\n13 Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., the U.S.\\n\\n14 Government imposed sanctions on Sudan aimed at halting the genocide. See\\n\\n15 Exec. Order No. 13,412 § 1, 71 Fed. Reg. 61,369 (Oct. 17, 2006); Exec. Order No.\\n\\n16 13,067 § 1, 62 Fed. Reg. 59,989 (Nov. 5, 1997); see generally 31 C.F.R. pt. 538.\\n\\n17 Nevertheless, as BNPP itself admitted, from 2002 to 2007, it “conspired with\\n\\n18 numerous Sudanese banks and entities as well as financial institutions outside of\\n\\n\\n\\n 4\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Sudan to violate the U.S. embargo by providing Sudanese banks and entities\\n\\n 2 access to the U.S. financial system.” Stipulated Statement of Facts ¶ 17, United\\n\\n 3 States v. BNP Paribas, S.A., No. 14-cr-00460-LGS (S.D.N.Y. 2015), ECF No. 13 Ex. 2.\\n\\n 4 In 2015, the Federal Government and New York State secured convictions\\n\\n 5 of BNPP for federal and state felonies. BNPP pled guilty to conspiracy to commit\\n\\n 6 an offense against the United States in violation of 18 U.S.C. § 371, by conspiring\\n\\n 7 to violate the IEEPA and the Trading with the Enemy Act, 50 U.S.C. § 4303 et seq.\\n\\n 8 BNPP also pled guilty to New York state crimes of falsifying business records in\\n\\n 9 the first degree, in violation of Penal Law § 175.10, and conspiracy in the fifth\\n\\n10 degree, in violation of Penal Law § 105.05. BNPP was required to pay almost\\n\\n11 nine billion dollars in forfeitures and fines, the largest financial penalty ever\\n\\n12 imposed in a criminal case.2\\n\\n13 BNPP admitted, in a Stipulated Statement of Facts (the “SSOF”), that the\\n\\n14 allegations in the federal and state criminal informations were true, as were\\n\\n15 additional facts set forth in the SSOF, and that had the matter gone to trial, the\\n\\n16 Federal Government and New York State would have proven them beyond a\\n\\n17 reasonable doubt. BNPP conceded that it “continued to process transactions\\n\\n18 involving Sudanese Sanctioned Entities—despite being well aware that its\\n 2\\n Press Release, Dep’t of Justice, BNP Paribas Sentenced for Conspiring to Violate the International Emergency\\n Economic Powers Act and the Trading with the Enemy Act (May 1, 2015).\\n\\n 5\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 conduct violated U.S. law—because the business was profitable” and BNPP “did\\n\\n 2 not want to risk its longstanding relationship with Sudanese clients.” SSOF ¶ 24;\\n\\n 3 see also id. ¶¶ 59–73 (outlining the evidence of BNPP’s knowledge of its illegal\\n\\n 4 conduct).\\n\\n 5 BNPP admitted that it employed many sophisticated methods to violate\\n\\n 6 U.S. law. First, it “carried out transactions with Sanctioned Entities and evaded\\n\\n 7 the U.S. embargo” against Sudan by “deliberately modifying and omitting\\n\\n 8 references to Sudan in the payment messages accompanying these transactions.”\\n\\n 9 Id. ¶ 18. Second, in cooperation with Sudanese entities, it utilized complicated\\n\\n10 payment structures with no legitimate business purpose to mask transaction\\n\\n11 information that could trigger scrutiny. Id. ¶ 16. Third, it moved “illicit\\n\\n12 transactions through unaffiliated satellite banks” to “disguise the involvement of\\n\\n13 Sanctioned Entities in U.S. dollar transactions,” id. ¶¶ 18, 23–26, and went as far\\n\\n14 as coordinating with satellite banks to institute waiting periods between transfers\\n\\n15 so that “U.S. authorities would be unable to link the payments to the involved\\n\\n16 Sanctioned Entit[ies],” id. ¶ 24.\\n\\n17 BNPP also conceded that it had knowledge of the atrocities being\\n\\n18 committed in Sudan and of the consequences of providing Sudan access to U.S.\\n\\n\\n\\n 6\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 financial markets. Specifically, BNPP admitted that its “central role in providing\\n\\n 2 Sudanese financial institutions access to the U.S. financial system, despite the\\n\\n 3 Government of Sudan’s role in supporting terrorism and committing human\\n\\n 4 rights abuses, was recognized by BNPP employees.” Id. ¶ 20. For example, in\\n\\n 5 2004, a manager at BNPP described the political environment in Sudan as\\n\\n 6 “dominated by the Darfur crisis” and called it a “humanitarian catastrophe.” Id.\\n\\n 7 In April 2006, a senior BNPP compliance officer stated in a memorandum that\\n\\n 8 “the growth of revenue from oil is unlikely to help end the conflict” and that “it\\n\\n 9 is probable that Sudan will remain torn up by insurrections and resulting\\n\\n10 repressive measures for a long time.” Id. In 2007, a BNPP compliance officer told\\n\\n11 other high-level compliance and legal personnel that the Sudanese entities with\\n\\n12 which BNPP dealt “play a pivotal part in the support of the Sudanese\\n\\n13 government which . . . has hosted Osama Bin Laden and refuses United Nations\\n\\n14 intervention in Darfur.” Id. A few months later, a BNPP executive warned in a\\n\\n15 memorandum that “in a context where the International Community puts\\n\\n16 pressure to bring an end to the dramatic situation in Darfur, no one would\\n\\n17 understand why BNP Paribas persists in Sudan which could be interpreted as\\n\\n18 supporting the leaders in place.” Id. The SSOF makes clear that despite BNPP’s\\n\\n\\n\\n 7\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 understanding of the likely consequences of its involvement with Sudan, it\\n\\n 2 persisted in illegal conduct on a wide scale because its “business [with Sudan]\\n\\n 3 was profitable.” Id. ¶ 37.\\n\\n 4 Plaintiffs, who now reside lawfully in the United States, sued BNPP in the\\n\\n 5 Southern District of New York on behalf of a putative class of victims of the\\n\\n 6 genocide in Sudan. They allege, and we must accept as true, that BNPP\\n\\n 7 circumvented U.S. sanctions and provided Sudan with financial resources\\n\\n 8 knowing that Sudan was committing atrocities, knowing that the purpose of the\\n\\n 9 sanctions was to prevent Sudan from acquiring funds with which to carry out\\n\\n10 those atrocities, and knowing that Sudan’s likely purpose in using the U.S.\\n\\n11 financial markets for illegal oil sales was to acquire billions of U.S. dollars to\\n\\n12 purchase the weapons and materials used by militia forces.\\n\\n13 Specifically, Plaintiffs allege that they were the victims of atrocities\\n\\n14 including mass rape, torture, deliberate infection with HIV, and being forced to\\n\\n15 watch the murder and rape of their family members. Second Amended\\n\\n16 Complaint ¶¶ 22–52, Kashef v. BNP Paribas SA, 316 F. Supp. 3d 770 (S.D.N.Y.\\n\\n17 2018) (No. 16-cv-03228-AJN), ECF No. 49. One plaintiff alleges that militia forces\\n\\n18 invaded her home, brutally beat her family, and murdered her father in front of\\n\\n\\n\\n 8\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 her children. Id. ¶ 37. She and her children found themselves in camps where\\n\\n 2 they were detained separately, starved, tortured, subjected to chemical weapons,\\n\\n 3 beaten, and raped. Id. Two of her children died in the camps, and the plaintiff\\n\\n 4 was forced to search for them among dead bodies being held in refrigerators on\\n\\n 5 site. Id. Her teenage son, she alleges, had been locked alive in a freezer for three\\n\\n 6 days. Id.\\n\\n 7 Another plaintiff alleges that she was kidnapped from her home,\\n\\n 8 blindfolded, and locked in a room without food, light, or water. Id. ¶ 41. She\\n\\n 9 was raped and tortured for days, causing infection with HIV and the miscarriage\\n\\n10 of an existing pregnancy. Id. Her husband was arrested, tortured, and\\n\\n11 eventually murdered. Id. All the Plaintiffs allege similar injuries at the hands of\\n\\n12 militia forces, which were armed and dispatched using the money and resources\\n\\n13 made available as a consequence of BNPP’s violation of U.S. sanctions on Sudan.\\n\\n14 In the Second Amended Complaint (the “SAC”), Plaintiffs asserted twenty\\n\\n15 claims arising under New York tort law. 3 Claims 1, 2, 15, and 16 were primary\\n\\n16 liability claims that BNPP was negligent per se and inflicted emotional distress\\n\\n17 on Plaintiffs. Claims 3 through 14, 19, and 20 were secondary liability claims that\\n\\n\\n 3\\n The District Court dismissed Claim 17, for commercial bad faith, and Claim 18, for unjust enrichment,\\n for failure to state a claim. Plaintiffs do not challenge the dismissal of these claims on appeal.\\n\\n\\n 9\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 BNPP conspired with or aided and abetted Sudan in its commission of battery,\\n\\n 2 battery in performance of public duty, assault, false arrest and imprisonment,\\n\\n 3 conversion through wrongful taking, conversion through wrongful detention,\\n\\n 4 and wrongful death.\\n\\n 5 BNPP moved to dismiss the claims. The District Court dismissed Claims 1\\n\\n 6 through 16, 19, and 20 under the act of state doctrine. Kashef, 316 F. Supp. 3d at\\n\\n 7 779. The Court reasoned that determining BNPP’s wrongdoing under New York\\n\\n 8 tort law would require it to either find an underlying tort committed by the\\n\\n 9 Sudanese regime (for secondary liability claims) or inquire into the harm to\\n\\n10 Plaintiffs caused by the regime (for primary liability claims). Id. at 777–78. The\\n\\n11 District Court concluded that it was prohibited from so doing by the act of state\\n\\n12 doctrine, which forbids U.S. courts from questioning the validity of official acts of\\n\\n13 foreign sovereigns. Id. As applied to only the Adult Plaintiffs,4 the District Court\\n\\n14 alternatively dismissed Claims 3 through 10 and 15 as untimely under New\\n\\n15 York’s one-year statute of limitations for intentional torts. Id. at 782. The District\\n\\n16 Court declined to apply New York C.P.L.R. § 213-b, under which the Adult\\n\\n17 Plaintiffs’ claims would be timely. Id. at 780–81.\\n\\n\\n\\n 4\\n Plaintiffs Sara Noureldirz Abdalla and Amir Ahmed were minors when they were injured. The\\n remaining Plaintiffs were over the age of 18 at the time of their alleged injuries.\\n\\n 10\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Plaintiffs appeal, arguing that the District Court erred in its application of\\n\\n 2 the act of state doctrine and in its conclusion that the Adult Plaintiffs’ claims are\\n\\n 3 time-barred. We agree and we vacate the judgment.\\n\\n 4 STANDARD OF REVIEW\\n\\n 5 We review de novo a district court’s grant of a motion to dismiss brought\\n\\n 6 under Rule 12(b)(6), accepting all factual allegations in the complaint as true and\\n\\n 7 drawing all reasonable inferences in the plaintiff’s favor. Nicosia v. Amazon.com,\\n\\n 8 Inc., 834 F.3d 220, 230 (2d Cir. 2016). “To survive a motion to dismiss, a\\n\\n 9 complaint must contain sufficient factual matter, accepted as true, to state a claim\\n\\n10 to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)\\n\\n11 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).\\n\\n12 DISCUSSION\\n\\n13 Act of State Doctrine\\n\\n14 The act of state doctrine bars U.S. courts from declaring invalid, and thus\\n\\n15 ineffective as a rule of decision, the official act of a foreign sovereign. W.S.\\n\\n16 Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 405 (1990). “Whether\\n\\n17 to invoke the act of state doctrine is ultimately and always a judicial question.”\\n\\n18 Republic of Philippines v. Marcos, 806 F.2d 344, 358 (2d Cir. 1986). The doctrine has\\n\\n\\n\\n 11\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 been applied where, for instance, parties sought to challenge the validity of\\n\\n 2 formalized, official expropriation decrees of foreign sovereigns. See, e.g., Banco\\n\\n 3 Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Similarly, the doctrine has been\\n\\n 4 applied where parties challenged the official orders of a sovereign’s highest\\n\\n 5 commander. See Underhill v. Hernandez, 168 U.S. 250 (1897).\\n\\n 6 The Supreme Court has made clear that the act of state doctrine has\\n\\n 7 important boundaries. It is not a categorical rule of abstention that prohibits\\n\\n 8 courts from deciding cases or controversies whenever issues of foreign relations\\n\\n 9 arise. Kirkpatrick, 493 U.S. at 409 (“The act of state doctrine does not establish an\\n\\n10 exception for cases and controversies that may embarrass foreign\\n\\n11 governments.”). The doctrine should not, the Supreme Court instructs, be\\n\\n12 casually expanded “into new and uncharted fields.” Id.\\n\\n13 In dismissing Plaintiffs’ claims, the District Court reasoned that “claims\\n\\n14 against private entities may be barred when the causal chain between a\\n\\n15 defendant’s alleged conduct and plaintiff’s injury cannot be determined without\\n\\n16 an inquiry into the motives of the foreign government.” Kashef, 316 F. Supp. 3d\\n\\n17 at 776. In so concluding, the District Court painted with too broad a brush and\\n\\n\\n\\n\\n 12\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 misapplied the doctrine in the exact way the Supreme Court warned against in\\n\\n 2 Kirkpatrick.\\n\\n 3 I\\n\\n 4 The Supreme Court has determined that when the validity of a foreign\\n\\n 5 state’s action is not the question being litigated, and the inquiry is simply\\n\\n 6 whether the conduct in question occurred, the act of state doctrine is not\\n\\n 7 implicated. Kirkpatrick, 493 U.S. at 405. In other words, the doctrine applies only\\n\\n 8 when “the relief sought or the defense [raised] would have required a court in the\\n\\n 9 United States to declare invalid the official act of a foreign sovereign performed\\n\\n10 within its own territory.” Id. at 405 (emphasis added). Adjudicating the claims\\n\\n11 in this action involves no such requirement.\\n\\n12 In Kirkpatrick, U.S. defendants had secured a contract with the Nigerian\\n\\n13 government by promising to pay a bribe. Id. at 402. Following an investigation,\\n\\n14 defendants pled guilty to violations of the Foreign Corrupt Practices Act. Id. The\\n\\n15 plaintiff, an unsuccessful bidder for the Nigerian government contract, then sued\\n\\n16 the defendants under federal and state racketeering and unfair competition\\n\\n17 statutes. Id. To prevail, the plaintiff had to prove that Nigerian officials received\\n\\n18 an unlawful bribe. Id. at 406.\\n\\n\\n\\n 13\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 The Supreme Court held that the act of state doctrine did not bar the\\n\\n 2 claims because, in considering them, the district court was not required to rule on\\n\\n 3 the legality of the contract itself. Id. at 406. It was only required to determine\\n\\n 4 whether Nigerian officials had received bribes, an inquiry that did not trigger the\\n\\n 5 act of state doctrine even if it “would impugn or question the nobility of a foreign\\n\\n 1 nation’s motivations.” Id. at 408.5 In fashioning the contours of the doctrine,\\n\\n 2 Justice Scalia, writing for the Court, drew from Sharon v. Time, Inc., 599 F. Supp.\\n\\n 3 538 (S.D.N.Y. 1984), for the proposition that the act of state doctrine is not\\n\\n 4 implicated when the litigated issue “is not whether the alleged acts are valid, but\\n\\n 5 whether they occurred.” Kirkpatrick, 493 U.S. at 406 (quoting Time, 599 F. Supp. at\\n\\n 6 546). In Time, Ariel Sharon, then-Minister of Defense of Israel, sued Time\\n\\n 7 Magazine for defamation following Time’s coverage of a report on Sharon’s\\n\\n 8 alleged participation in the murder of innocent Palestinians. 599 F. Supp. at 542.\\n\\n 9 To adjudicate the claim, the district court had to determine whether claims that\\n\\n10 Sharon was complicit in murder were false, which would implicate the actions of\\n\\n\\n\\n 5\\n Moreover, the Supreme Court explained that even though a finding that Nigerian officials had\\n received bribes supported a finding that the contract was invalid, the act of state doctrine was still not\\n implicated because the parties never formally disputed the legality of the contract itself. See Kirkpatrick, 493\\n U.S. at 406 (“Specifically, [petitioners] note that in order to prevail respondent must prove that petitioner\\n Kirkpatrick made, and Nigerian officials received, payments that violate Nigerian law, which would, they\\n assert, support a finding that the contract is invalid under Nigerian law. Assuming that to be true, it still does\\n not suffice [to trigger the act of state doctrine].”).\\n\\n 14\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Israel and Lebanon. Id. at 553. The district court determined that the act of state\\n\\n 2 doctrine did not apply, reasoning that\\n\\n 3 No one is suggesting that these acts—by which Time claims Sharon\\n 4 condoned the massacre of unarmed noncombatant civilians—have\\n 5 validity in the sense that they cannot be attacked. All agree—Israel,\\n 6 the United States, and the world community—that such actions, if\\n 7 they occurred, would be illegal and abhorrent. The issue in this\\n 8 litigation is not whether such acts are valid, but whether they\\n 9 occurred.\\n\\n10 Id. at 546.\\n\\n11 The reasoning of Kirkpatrick is directly applicable to this case. By BNPP’s\\n\\n12 own concession, the acts of Sudan to which BNPP asks us to defer are the\\n\\n13 atrocities committed against innocent civilians. Oral Arg. R. at 23:14–40 (“The\\n\\n14 alleged official acts are . . . running their militias that inflicted violence on these\\n\\n15 plaintiffs . . . other acts of sexual violence, mass rape, and . . . genocide.”). No\\n\\n16 one here—the parties, the U.S. government, Sudan (in its own Constitution), or\\n\\n17 the international community—contends that genocide, mass rape, and ethnic\\n\\n18 cleansing are “valid.”6 Instead, the issue is simply whether the atrocities\\n\\n 6\\n\\n See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted) (declaring Sudan’s genocide); S. Con. Res.\\n 133, 108th Cong. (2004) (enacted) (same); Exec. Order No. 13,412 (sanctioning Sudan for its violations of\\n human rights); THE INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN (2005); CONSTITUTION OF THE\\n REPUBLIC OF SUDAN (1998); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1210 (9th Cir. 2007) (discussing how\\n violations of jus cogens norms cannot constitute rules of decision entitled to act-of-state deference); Warfaa v.\\n Ali, 33 F. Supp. 3d 653, 661–62 (E.D. Va. 2014) (same), aff’d, 811 F.3d 653 (4th Cir. 2016); Garcia v. Chapman, 911\\n F. Supp. 2d 1222, 1242 (S.D. Fla. 2012) (same).\\n\\n\\n 15\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 occurred. This inquiry into occurrence rather than validity is precisely what the\\n\\n 2 Supreme Court in Kirkpatrick held was not precluded by the act of state doctrine.\\n\\n 3 To be sure, to prevail on their secondary liability claims against BNPP, the\\n\\n 4 plaintiffs will need to establish primary torts committed by the Sudanese regime.\\n\\n 5 Proof of these primary tort claims, as the SAC suggests, will be based on the\\n\\n 6 widespread and widely known genocide perpetrated in Sudan. The act of state\\n\\n 7 doctrine cannot shield this genocide from scrutiny by the courts of the United\\n\\n 8 States because, as we will discuss in depth below, both Sudan’s own laws and a\\n\\n 9 universal international consensus prohibit us from deeming genocide an “official\\n\\n10 act” of Sudan, or for that matter, of any state, that could supply or support a rule\\n\\n11 of decision for our courts.\\n\\n12 II\\n\\n13 Kirkpatrick makes clear that the act of state doctrine only applies if\\n\\n14 adjudicating the claims in question would require a court to declare invalid a\\n\\n15 sovereign’s “official act.” Kirkpatrick, 493 U.S. at 405. To qualify as “official,” an\\n\\n16 act must be imbued with some level of formality, such as authorization by the\\n\\n17 foreign sovereign through an official “statute, decree, order, or resolution.”\\n\\n18 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 (1976). A level\\n\\n\\n\\n 16\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 of formality has featured in every Supreme Court case in which the act of state\\n\\n 2 doctrine has been applied. For example, in Banco Nacional de Cuba v. Sabbatino,\\n\\n 3 the Supreme Court applied the doctrine to an official and formalized government\\n\\n 4 expropriation decree. 376 U.S. at 406; see also Oetjen v. Central Leather Co., 246 U.S.\\n\\n 5 297 (1918) (applying the act of state doctrine to an official government\\n\\n 6 expropriation decree); Ricaud v. American Metal Co., 246 U.S. 304 (1918) (same).\\n\\n 7 Similarly, in Underhill v. Hernandez, the Supreme Court applied the act of state\\n\\n 8 doctrine to an official order by the highest military commander of a U.S.-\\n\\n 9 recognized government not to issue a passport. 168 U.S. at 254. Cases in our\\n\\n10 Circuit have also required this formality to trigger act-of-state deference.\\n\\n11 Konowaloff v. Metro. Museum of Art, 702 F.3d 140, 147 (2d Cir. 2012) (applying the\\n\\n12 act of state doctrine to an official government expropriation decree); Fed. Treasury\\n\\n13 Enter. Sojuzplodoimport v. Spirits Int’l B.V., 809 F.3d 737, 743 (2d Cir. 2016) (same),\\n\\n14 cert. denied, 137 S. Ct. 160 (2016).\\n\\n15 BNPP makes absolutely no showing that the atrocities committed against\\n\\n16 the Plaintiffs were the officially sanctioned policies of Sudan. They point to no\\n\\n17 statute, decree, order, resolution, or comparable evidence of sovereign\\n\\n18 authorization for any of the actions in question. On the contrary, the atrocities\\n\\n\\n\\n 17\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 alleged to have occurred unquestionably violated Sudanese law. See, e.g., THE\\n\\n 2 INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2;\\n\\n 3 CONSTITUTION OF THE REPUBLIC OF SUDAN pts. 1–2. In Filartiga v. Pena-Irala, we\\n\\n 4 made clear that “we doubt whether action by a state official in violation of [its]\\n\\n 5 Constitution and laws . . . and wholly unratified by [its] government, could\\n\\n 6 properly be characterized as an act of state.” 630 F.2d 876, 889 (2d Cir. 1980).\\n\\n 7 Similarly, in Kadic v. Karadzic, we noted that “the appellee has not had the\\n\\n 8 temerity to assert in this Court that the acts [of torture] he allegedly committed\\n\\n 9 are the officially approved policy of a state.” 70 F.3d 232, 250 (2d Cir. 1995).\\n\\n10 Given our precedent, acts that flagrantly violate a foreign state’s own laws\\n\\n11 cannot, at the same time, constitute official acts entitled to deference.\\n\\n12 Considering the lack of evidence introduced by BNPP that genocide is the\\n\\n13 official policy of Sudan, and the countervailing evidence that genocide blatantly\\n\\n14 violates Sudan’s own laws, we conclude that there is simply no “official act” that\\n\\n15 a court would be required to “declare invalid” in order to adjudicate Plaintiffs’\\n\\n16 claims. Kirkpatrick, 493 U.S. at 405.\\n\\n\\n\\n\\n 18\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 III\\n\\n 2 There is an equally steep hurdle that BNPP fails to overcome. We are\\n\\n 3 prohibited from deeming valid, for purposes of act-of-state deference, atrocities\\n\\n 4 such as genocide, mass rape, and ethnic cleansing, which violate jus cogens\\n\\n 5 norms. “A jus cogens norm, also known as a peremptory norm of international\\n\\n 6 law, is a norm accepted and recognized by the international community of states\\n\\n 7 as a whole as a norm from which no derogation is permitted and which can be\\n\\n 8 modified only by a subsequent norm of general international law having the\\n\\n 9 same character.” Carpenter v. Republic of Chile, 610 F.3d 776, 780 n.4 (2d Cir. 2010).\\n\\n10 “Jus cogens embraces customary laws considered binding on all nations, and is\\n\\n11 derived from values taken to be fundamental by the international community,\\n\\n12 rather than from the fortuitous or self-interested choices of nations.” Siderman de\\n\\n13 Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992). Accordingly, we\\n\\n14 have previously explained that these norms may not be violated, “irrespective of\\n\\n15 the consent or practice of a given State.” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 179\\n\\n16 (2d Cir. 2009). “Because jus cogens norms do not depend solely on the consent of\\n\\n17 states for their binding force, they enjoy the highest status within international\\n\\n18 law.” Siderman, 965 F.2d at 715.\\n\\n\\n\\n 19\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 There is no doubt that jus cogens norms were violated by the atrocities\\n\\n 2 occurring in Sudan. See, e.g., Abdullahi, 562 F.3d at 179; Pena-Irala, 630 F.2d at 884;\\n\\n 3 Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir.\\n\\n 4 1988); Siderman, 965 F.2d at 714; Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130\\n\\n 5 (E.D.N.Y. 2000); Hirsh v. State of Israel, 962 F. Supp. 377, 381 (S.D.N.Y. 1997), aff’d,\\n\\n 6 133 F.3d 907 (2d Cir. 1997). All of Plaintiffs’ claims are premised on these blatant\\n\\n 7 violations of jus cogens norms. A dismissal of the claims based on the act of state\\n\\n 8 doctrine would require, as a predicate, that the violations in question be\\n\\n 9 “deemed valid” by courts of this country, see Kirkpatrick, 493 U.S. at 409,\\n\\n10 regardless of the universal (and uncontroversial) understanding that genocide is\\n\\n11 unlawful. Because our precedent prohibits us from deeming valid violations of\\n\\n12 non-derogable jus cogens norms, “irrespective of the consent or practice of a given\\n\\n13 State,” Abdullahi, 562 F.3d at 179, we conclude that the atrocities to which BNPP\\n\\n14 asks us to defer can never be the basis of a rule of decision capable of triggering\\n\\n15 the act of state doctrine.7\\n\\n\\n\\n\\n 7\\n This conclusion is consistent with those of other courts that have directly considered the question.\\n See, e.g., Siderman, 965 F.2d at 714 (determining that torture violates jus cogens norm); Sarei v. Rio Tinto, PLC,\\n 671 F.3d 736, 757 (9th Cir. 2011), vacated on other grounds sub nom. Rio Tinto PLC v. Sarei, 569 U.S. 945 (2013);\\n Yousuf v. Samantar, 699 F.3d 763, 776 (4th Cir. 2012); Warfaa v. Ali, 33 F. Supp. at 661–62; Garcia v. Chapman,\\n 911 F. Supp. 2d at 1242; cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir. 2000).\\n\\n 20\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 Timeliness\\n\\n 2 In addition to dismissing Plaintiffs’ claims under the act of state doctrine,\\n\\n 3 the District Court alternatively dismissed the intentional tort claims of the Adult\\n\\n 4 Plaintiffs as untimely under New York C.P.L.R. § 215. Plaintiffs argue that their\\n\\n 5 claims are timely under § 215(8)(a) or § 213-b. We hold that Plaintiffs’ claims are\\n\\n 6 timely under § 215(8)(a).\\n\\n 7 New York C.P.L.R. § 215(8)(a) provides:\\n\\n 8 Whenever it is shown that a criminal action against the same\\n 9 defendant has been commenced with respect to the event or\\n10 occurrence from which a claim governed by this section arises, the\\n11 plaintiff shall have at least one year from the termination of the\\n12 criminal action as defined in section 1.20 of the criminal procedure\\n13 law in which to commence the civil action notwithstanding that the\\n14 time in which to commence such action has already expired or has\\n15 less than a year remaining.\\n16\\n17 In Clemens v. Nealon, a New York appellate court explicitly rejected the\\n\\n18 theory that “the tolling provisions of CPLR 215(8) are exclusively for the benefit\\n\\n19 of the victims of the crime charged in the criminal proceeding.” 608 N.Y.S.2d\\n\\n20 370, 371 (App. Div. 1994). Instead, § 215(8)(a) is satisfied so long as “(1) a\\n\\n21 criminal action has been commenced, (2) against the same defendants, and (3)\\n\\n22 concerning the same event or transaction from which the civil action arose.” Id.\\n\\n23 The “termination of the criminal action” is measured from the date on which the\\n\\n\\n 21\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n 1 defendant was sentenced. Dynamic Chemicals, Inc. v. Ackerman Mech. Servs., Inc.,\\n\\n 2 867 N.Y.S.2d 820, 822 (App. Div. 2008).\\n\\n 3 Plaintiffs did not raise the § 215(8)(a) argument before the District Court.\\n\\n 4 However, we have “discretion to consider waived arguments” and should\\n\\n 5 exercise this discretion “where the argument presents a question of law and there\\n\\n 6 is no need for additional fact-finding.” Bogle-Assegai v. Connecticut, 470 F.3d 498,\\n\\n 7 504 (2d Cir. 2006). In this case, the issue is a simple question of law—whether\\n\\n 8 § 215(8)(a) applies. The factual predicate for the question has been fully briefed\\n\\n 9 by both parties and there has been no contention that additional fact-finding is\\n\\n10 required or that any of the relevant facts are in dispute. We therefore exercise\\n\\n11 our discretion to consider the argument.\\n\\n12 BNPP is the same defendant that federal authorities prosecuted in a\\n\\n13 criminal action, satisfying the first and second prongs of § 215(8)(a).\\n\\n14 Additionally, the Plaintiffs’ causes of action arise out of the same occurrence as\\n\\n15 the criminal prosecution: BNPP’s conspiracy with Sudan to violate U.S.\\n\\n16 sanctions. Indeed, the Plaintiffs’ theory is that BNPP was illegally funding\\n\\n17 Sudan’s commission of atrocities by avoiding U.S. sanctions put in place to\\n\\n18 protect the Plaintiffs and the purported class, knowing that the funds would be\\n\\n\\n\\n 22\\n\\f 18-1304-cv\\n Kashef v. BNP Paribas S.A.\\n\\n1 used by Sudan to continue the perpetration of atrocities. SAC ¶¶ 1–15. The third\\n\\n2 prong is thus satisfied and § 215(8)(a) applies. Because BNPP’s judgment of\\n\\n3 conviction was entered on May 1, 2015 and the Plaintiffs’ civil action was filed on\\n\\n4 April 29, 2016, the Adult Plaintiffs’ claims are timely under § 215(8)(a).\\n\\n5 CONCLUSION\\n\\n6 For the reasons set forth, we VACATE the judgment of the District Court\\n\\n7 and REMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1990,"cells":{"id":{"kind":"number","value":4622548,"string":"4,622,548"},"name":{"kind":"string","value":"UNITED STATES of America, Appellant, v. John PAULING, A/K/A JJ, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"United States v. Pauling"},"decision_date":{"kind":"string","value":"2019-05-23"},"docket_number":{"kind":"string","value":"Docket 17-2539-cr; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Katzmann, Kearse, Chin\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2539‐cr\\nUnited States v. Pauling\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Argued: October 23, 2018 Decided: May 23, 2019)\\n\\n Docket No. 17‐2539‐cr\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellant,\\n\\n v.\\n\\n JOHN PAULING, A/K/A JJ,\\n\\n Defendant‐Appellee.\\n\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE SOUTHERN DISTRICT OF NEW YORK\\n\\n\\nBefore:\\n KATZMANN, Chief Judge, and KEARSE and CHIN, Circuit Judges.\\n\\n\\n\\n Appeal by the government from an opinion and order of the United\\n\\nStates District Court for the Southern District of New York (Oetken, J.) granting\\n\\ndefendant‐appelleeʹs motion to vacate a portion of the juryʹs guilty verdict. After\\n\\fa four‐day trial, the jury convicted defendant‐appellee of conspiracy to distribute\\n\\n100 grams or more of heroin as well as several other narcotics and firearms\\n\\nviolations. Defendant‐appellee moved to vacate the juryʹs verdict on the\\n\\nconspiracy count, on the basis that the evidence at trial was insufficient to\\n\\nestablish the quantity element of the crime. The district court granted the\\n\\nmotion, vacated the juryʹs finding as to quantity, and entered a verdict of guilty\\n\\nto a lesser included offense. The government appeals, arguing that it introduced\\n\\nevidence sufficient to prove quantity and that therefore the juryʹs verdict should\\n\\nbe reinstated.\\n\\n AFFIRMED and REMANDED for sentencing.\\n\\n\\n JASON M. SWERGOLD, Assistant United States Attorney\\n (Amanda L. Houle, Micah W.J. Smith, Assistant\\n United States Attorneys, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, New\\n York, for Appellant.\\n\\n YUANCHUNG LEE, Federal Defenders of New York, Inc.,\\n New York, New York, for Defendant‐Appellee.\\n ___________\\n\\nCHIN, Circuit Judge:\\n\\n In this case, a jury convicted defendant‐appellee John Pauling of\\n\\nconspiring to distribute or possess with the intent to distribute 100 grams or\\n\\n 2\\n\\fmore of heroin. The parties agree that the government was required to prove\\n\\nthat the heroin in question was the subject of a conspiracy between Pauling and\\n\\none of his suppliers, referred to as ʺLowʺ (the ʺPauling‐Low conspiracyʺ), and\\n\\nthat the government proved beyond a reasonable doubt that 89 grams of heroin\\n\\nwere attributable to the Pauling‐Low conspiracy. The parties disagree, however,\\n\\nas to whether the government proved that the Pauling‐Low conspiracy involved\\n\\nthe additional 11 grams of heroin necessary to reach the 100‐gram threshold.\\n\\n The district court granted Paulingʹs motion pursuant to Federal Rule\\n\\nof Criminal Procedure 29 to set aside his conviction on the conspiracy count on\\n\\nthe ground that the evidence introduced at trial failed to establish that an\\n\\nadditional 11 grams of heroin were attributable to the Pauling‐Low conspiracy.\\n\\nInstead of entering judgment convicting Pauling of violating 21 U.S.C.\\n\\n§§ 841(a)(1), 841(b)(1)(B) and 846, it entered judgment finding Pauling guilty of a\\n\\nlesser included offense, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.\\n\\nThe former offense carries a five‐year mandatory sentence for violations\\n\\ninvolving 100 grams or more of heroin, while the latter offense carries no\\n\\n\\n\\n\\n 3\\n\\fmandatory minimum and contains no quantity element.1 The government\\n\\nappeals.\\n\\n We conclude that the evidence at trial was insufficient to permit a\\n\\nreasonable jury to find beyond a reasonable doubt that the Pauling‐Low\\n\\nconspiracy involved an additional 11 grams of heroin. Accordingly, we affirm\\n\\nand remand for sentencing.\\n\\n BACKGROUND\\n\\nA. Factual Background2\\n\\n Between May 25 and July 14, 2016, the Drug Enforcement\\n\\nAdministration (ʺDEAʺ) intercepted phone calls between Pauling and various\\n\\nassociates, including an individual named ʺLow.ʺ On July 14, Pauling was\\n\\narrested by authorities. Upon his arrest, agents seized from Paulingʹs apartment\\n\\napproximately 600 glassine bags, a digital scale, materials that could be used as a\\n\\n\\n\\n\\n1 See United States v. Facen, 812 F.3d 280, 283 n.1 (2d Cir. 2016) (noting that a\\njudgment of conviction under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) is ʺin effect a\\nlesser‐included offenseʺ of 21 U.S.C. § 841(b)(1)(B) ʺwithout a mandatory minimum\\nsentenceʺ).\\n2 Our statement of facts views the evidence in the light most favorable to the\\ngovernment, crediting any inference that the jury might have drawn in its favor. See\\nUnited States v. Rosemond, 841 F.3d 95, 99‐100 (2d Cir. 2016).\\n 4\\n\\fcutting agent, and other paraphernalia associated with the distribution of\\n\\ncontrolled substances.\\n\\n Pauling concedes that the government established at trial that he\\n\\nand Low conspired to distribute 89 grams of heroin. This was shown through\\n\\nwiretap evidence of four transactions. On June 26, 2016, Pauling purchased 30\\n\\ngrams of heroin from Low for resale to a customer named ʺFlow.ʺ On June 27,\\n\\nPauling combined 10 grams of heroin he received from Low with 20 grams of a\\n\\ncutting agent, for a total of 30 grams of heroin. On July 3, Pauling requested 14\\n\\ngrams of heroin from Low for a customer named ʺSteve.ʺ Finally, on July 11,\\n\\nLow supplied Pauling with 11 grams of heroin, again for Steve, which Pauling\\n\\ncut for a total of 15 grams. The four transactions thus involved a total of 89\\n\\ngrams of heroin.3\\n\\n The conversation between Pauling and Steve about the July 3\\n\\ntransaction is at issue in this appeal. At 1:16 p.m. that day, Pauling spoke to\\n\\nSteve about the quantity of heroin Steve wanted to order:\\n\\n\\n\\n\\n3 Pauling concedes that the quantity of the heroin in question is the weight with\\nthe cutting agent included. See 21 U.S.C. § 841(b)(1)(B)(i) (providing penalties for the\\ndistribution or possession with intent to distribute ʺ100 grams or more of a mixture or\\nsubstance containing a detectable amount of heroinʺ). The record indicates that at the\\ntime of the conspiracy, a gram of heroin sold for approximately $65.\\n 5\\n\\f PAULING: [T]ell me, the count, thatʹs, you know,\\n tomorrow.\\n STEVE: Iʹll meet you on, hold on one second. Iʹm on 17, as a\\n matter of fact, same thing as last time, same thing [as] last\\n time.\\n PAULING: Where was it? I forgot, shit because there was\\n so many people.\\n STEVE: Hold on, right, right. Iʹma go to, uh, 14th floor.\\n\\nAppʹx at 122. The parties agree that the floor number was code for drug\\n\\nquantity, in grams. Approximately three hours later, at 4:04 p.m., Pauling called\\n\\nLow:\\n\\n PAULING: Yo um, how we gonna do this cause my man\\n wants four‐fourteen right and he be down tomorrow and I\\n got some other people who want ‐‐\\n LOW: 14?\\n PAULING: Huh?\\n LOW: You said 14?\\n PAULING: Yeah, and I got these other people that want a\\n gram‐, two grams shit like that.\\n\\nId. at 124. There is no dispute that the July 3 calls account for 14 grams of heroin\\n\\nattributable to the Pauling‐Low conspiracy, and this amount is included in the 89\\n\\ngrams discussed above. The parties disagree, however, about whether Steveʹs\\n\\nreference to ʺsame thing as last timeʺ during the 1:16 p.m. call referred to a prior\\n\\n14‐gram transaction of heroin supplied by Low. The government argues that it\\n\\ndid and that the total quantity of heroin attributable to the Pauling‐Low\\n\\n\\n 6\\n\\fconspiracy was therefore 103 grams ‐‐ just over the 100‐gram threshold required\\n\\nfor the conspiracy count.\\n\\n The wiretaps also provided information about the relationship\\n\\nbetween Pauling and Low. Pauling owed Low money. Pauling was aware that\\n\\nLow had a stash house for his narcotics, and he was aware that Lowʹs associate\\n\\nʺPlayʺ worked at the stash house. Pauling and Low discussed prices. On more\\n\\nthan one occasion, they discussed in detail the process of cutting narcotics and\\n\\nthe benefits of certain cutting agents.4 Pauling also indicated on several\\n\\noccasions that he would help sell Lowʹs product.5 The government argues that\\n\\n\\n\\n4 Appʹx at 114 (PAULING: ʺIʹm mixing this shit right now. . . . Iʹm squeezing it in\\nmy hand . . . . I ainʹt gonna put it in no press. . . . I told you I put the strainer, right?\\nAnd then [unintelligible] I had to take a hammer and break it with a hammer, cut it\\nsmall and then I mashed it up . . . .ʺ); id. at 124‐25 (PAULING: ʺIʹma bring the machine\\nso we could press it all. . . . [Y]ou donʹt wanna smash it up? I mean you donʹt want to\\npress it? LOW: Yeah. Iʹve been wanted to do that all the week, nigga. Iʹve been calling\\nyou man. . . . PAULING: Aight, so we can do it tomorrow then.ʺ); id. at 144‐45\\n(PAULING: ʺThey love it. Donʹt touch it. They love it. . . . [I]f we didnʹt have that\\nwhat we did last night, it would be too sticky . . . . And it was like all gooey. . . . [T]he\\nonly thing that gets it like that is what we did last night. . . . Thatʹs what makes it better.\\n. . . And what I want to, right? Is . . . lie it out and, um, dry it out all the, the sweetness.\\n. . . [D]onʹt get no mix from nowhere else, just use that.ʺ).\\n5 Appʹx at 130 (PAULING: ʺIʹll help you get rid of that shit . . . this week.\\n[T]omorrow that shit will be gone.ʺ); id. at 116 (PAULING: ʺ[T]he queens thing is good.\\n. . . [I]tʹs already established.ʺ); id. at 124 (PAULING: ʺI got some other people who\\nwant . . . a gram‐, two grams shit like that.ʺ); id. at 145‐46 (PAULING: ʺIʹm a move it off\\nfor you. . . . Iʹm spend it with you anyway. . . . Iʹm a get rid of all that.ʺ); id. (LOW:\\nʺ[W]e got a nice amount of that shit left, too. . . . PAULING: I got you, I, Iʹm a be hittinʹ\\nyou . . . when, um, dude calls me.ʺ).\\n 7\\n\\fthis evidence proved circumstantially that Pauling and Low conspired to\\n\\ndistribute at least another 11 grams of heroin beyond the 89 grams discussed\\n\\nabove.\\n\\n B. Procedural History\\n\\n On July 14, 2016, the DEA arrested Pauling for his alleged\\n\\ninvolvement with guns and drugs in the New York City area. The government\\n\\nindicted Pauling on August 18, 2016, on five counts. The government filed a\\n\\nsuperseding indictment on January 19, 2017, charging Pauling with eight counts:\\n\\n(a) conspiring to distribute and to possess with intent to distribute 100 grams or\\n\\nmore of mixtures containing heroin, in violation of 21 U.S.C. §§ 841(a)(1),\\n\\n841(b)(1)(B), and 846 (ʺCount Oneʺ); (b) three counts of distributing and\\n\\npossessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812,\\n\\n841(a)(1), and 841(b)(1)(C); (c) one count of firearms trafficking, in violation of 18\\n\\nU.S.C. § 922(a)(1)(A) and (a)(2); (d) one count of using, carrying, or possessing a\\n\\nfirearm in connection with the heroin distribution conspiracy charged in Count\\n\\nOne, in violation of 18 U.S.C. § 924(c) (ʺCount Sixʺ); and (e) two counts of\\n\\npossessing a firearm after sustaining a felony conviction, in violation of 18 U.S.C.\\n\\n§ 922(g)(1).\\n\\n\\n\\n 8\\n\\f Trial began on February 13, 2017. At the close of the governmentʹs\\n\\ncase‐in‐chief on February 15, Pauling moved for a judgment of acquittal as to\\n\\nCount One under Federal Rule of Criminal Procedure 29, citing insufficient\\n\\nevidence to sustain a conviction. The court reserved decision. On February 16,\\n\\nPauling conceded in his closing argument that he was guilty of all counts except\\n\\nfor Counts One and Six. The jury returned its verdict later that day, finding\\n\\nPauling guilty of all but Count Six.\\n\\n On March 24, 2017, Pauling renewed his motion under Rule 29 to\\n\\nvacate and set aside the portion of the juryʹs verdict on Count One finding that at\\n\\nleast 100 grams of heroin were attributable to the Pauling‐Low conspiracy.\\n\\nPauling moved in the alternative for a new trial pursuant to Rule 33 as to that\\n\\ncount. He argued that the July 3 call could not support a jury finding of 28\\n\\ngrams by including the alleged prior 14‐gram transaction and that the 100‐gram\\n\\nthreshold was not otherwise proven beyond a reasonable doubt. The\\n\\ngovernment opposed both motions, arguing that the jury could have reasonably\\n\\ninferred from the July 3 call that the ʺsame thing as last timeʺ referred to an\\n\\nearlier transaction in which Pauling sold Steve 14 grams of heroin sourced from\\n\\nLow. It argued that this prior 14‐gram transaction should be included, thus\\n\\n\\n\\n 9\\n\\fbringing the total quantity attributable to the Pauling‐Low conspiracy to 103\\n\\ngrams. It argued alternatively that the jury could reasonably infer from the\\n\\nʺclose working relationshipʺ between Pauling and Low that their conspiracy\\n\\nextended ʺwell beyondʺ 100 grams. Appʹx at 216‐17.\\n\\n On June 12, 2017, the district court granted Paulingʹs motion to\\n\\nvacate and set aside his conviction on Count One and entered a verdict of guilty\\n\\nto a lesser included offense. The district court also conditionally granted\\n\\nPaulingʹs motion for a new trial, pending the outcome of this appeal. Paulingʹs\\n\\nsentencing, scheduled for September 13, 2017, was stayed pending this appeal.\\n\\n DISCUSSION\\n\\n Pauling does not challenge the juryʹs finding that he participated in\\n\\na conspiracy with Low to distribute heroin. Nor does he dispute that the\\n\\nevidence established that he directly participated with Low in the distribution of\\n\\n89 grams of heroin. We are therefore presented with a single, discrete question:\\n\\nWhether the government presented evidence sufficient for the jury to find\\n\\nbeyond a reasonable doubt that an additional 11 grams or more of heroin was\\n\\nattributable to the Pauling‐Low conspiracy. The government argues that it did\\n\\n\\n\\n\\n 10\\n\\fso, relying first on the July 3 telephone call and second on the evidence of an\\n\\nongoing relationship between Pauling and Low.\\n\\nI. Applicable Law\\n\\n The quantity of drugs involved in a violation of § 841(b)(1)(B) is an\\n\\nelement of the charged offense, see United States v. Gonzalez, 420 F.3d 111, 131 (2d\\n\\nCir. 2005), and the government has the burden of proving the charged quantity\\n\\nbeyond a reasonable doubt, id. at 120. The quantity element is met only if ʺa\\n\\nsingle conspiracy,ʺ rather than ʺseparate agreements [that] may have been\\n\\ncharged under the umbrella of a single conspiracy count,ʺ crosses the quantity\\n\\nthreshold. United States v. Barnes, 158 F.3d 662, 670‐71 (2d Cir. 1998). Thus, while\\n\\nthe evidence at trial established that Pauling conspired to distribute over 200\\n\\ngrams of heroin with various individuals, see Appʹx at 202, it was the\\n\\ngovernmentʹs burden with respect to Count One to prove that 100 or more of\\n\\nthose grams were attributable to a single conspiracy ‐‐ the Pauling‐Low\\n\\nconspiracy.\\n\\n Due process requires that essential elements of a crime be proven\\n\\nbeyond a reasonable doubt to ensure that ʺno person shall be made to suffer the\\n\\nonus of a criminal conviction except upon sufficient proof.ʺ Jackson v. Virginia,\\n\\n\\n\\n 11\\n\\f443 U.S. 307, 316 (1979); see also In re Winship, 397 U.S. 358, 364 (1970). Rule 29 of\\n\\nthe Federal Rules of Criminal Procure is one means of protecting this\\n\\nconstitutional right; it enables the district court to vacate a conviction if it\\n\\nconcludes that ʺno rational trier of fact could find guilt beyond a reasonable\\n\\ndoubt.ʺ Jackson, 443 U.S. at 317; see also United States v. Coplan, 703 F.3d 46, 62 (2d\\n\\nCir. 2012) (ʺ[W]e will uphold the judgment[] of conviction if ʹany rational trier of\\n\\nfact could have found the essential elements of the crime beyond a reasonable\\n\\ndoubt.ʹʺ (quoting Jackson, 443 U.S. at 319)). We review de novo a district courtʹs\\n\\ngrant of a Rule 29 motion based on a finding that the trial evidence was\\n\\ninsufficient to support the juryʹs verdict, applying the same standard the district\\n\\ncourt applies in review of the evidence. United States v. Truman, 688 F.3d 129, 139\\n\\n(2d Cir. 2012).\\n\\n A defendant challenging a juryʹs guilty verdict ʺbears a heavy\\n\\nburden.ʺ United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (internal\\n\\nquotation marks omitted). This is because, ʺ[i]n evaluating a sufficiency\\n\\nchallenge, we ʹmust view the evidence in the light most favorable to the\\n\\ngovernment, crediting every inference that could have been drawn in the\\n\\ngovernment’s favor, and deferring to the jury’s assessment of witness credibility\\n\\n\\n\\n 12\\n\\fand its assessment of the weight of the evidence.ʹʺ Id. (quoting Coplan, 703 F.3d\\n\\nat 62). This deferential standard of review is ʺespecially important when\\n\\nreviewing a conviction of conspiracy . . . because a conspiracy by its very nature\\n\\nis a secretive operation, and it is a rare case where all aspects of a conspiracy can\\n\\nbe laid bare in court with the precision of a surgeonʹs scalpel.ʺ United States v.\\n\\nPitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks omitted).\\n\\n ʺAn inference is not a suspicion or a guess. It is a reasoned, logical\\n\\ndecision to conclude that a disputed fact exists on the basis of another fact that is\\n\\nknown to exist.ʺ Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (alterations\\n\\nomitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)).\\n\\nImpermissible speculation, on the other hand, is ʺa complete absence of\\n\\nprobative facts to support the conclusion reached.ʺ Lavendar v. Kurn, 327 U.S.\\n\\n645, 653 (1946). While we must defer to a juryʹs reasonable inferences, we give\\n\\nno deference to impermissible speculation. United States v. DʹAmato, 39 F.3d\\n\\n1249, 1256 (2d Cir. 1994).\\n\\n The line between permissible inference and impermissible\\n\\nspeculation ʺis drawn by the laws of logicʺ and not ʺjudicial idiosyncrasies.ʺ Tose\\n\\nv. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir. 1981), abrogated on other grounds\\n\\n\\n\\n 13\\n\\fby Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). As the Supreme\\n\\nCourt has instructed, ʺthe essential requirement is that mere speculation be not\\n\\nallowed to do duty for probative facts, after making due allowance for all\\n\\nreasonably possible inferences favoring the party whose case is attacked.ʺ\\n\\nGalloway v. United States, 319 U.S. 372, 395 (1943). Thus, in a criminal case, ʺthe\\n\\ngovernment must do more than introduce evidence ʹat least as consistent with\\n\\ninnocence as with guilt.ʹʺ DʹAmato, 39 F.3d at 1256 (quoting United States v.\\n\\nMulheren, 938 F.2d 364, 372 (2d Cir. 1991)).\\n\\n At times it may be difficult to distinguish between inference and\\n\\nspeculation, as some speculation may indeed be reasonable. Reasonable\\n\\nspeculation occurs when the finder of fact concludes that a disputed fact exists\\n\\nthat is within the realm of possibility, but the conclusion reached is nevertheless\\n\\nunreasonable because it is not logically based on another fact known to exist. See\\n\\nLangston v. Smith, 630 F.3d 310, 314, 319 (2d Cir. 2011) (noting distinction between\\n\\nʺreasonable speculationʺ and ʺsufficient evidenceʺ); Leonard B. Sand et al.,\\n\\nModern Federal Jury Instructions § 6.01 (2011) (ʺThe process of drawing\\n\\ninferences from facts in evidence is not a matter of guesswork or speculation. An\\n\\ninference is a deduction or conclusion which . . . the jury [is] permitted to draw\\n\\n\\n\\n 14\\n\\f. . . from facts which have been established by either direct or circumstantial\\n\\nevidence.ʺ); see also OʹLaughlin v. OʹBrien, 568 F.3d 287, 301‐02 (1st Cir. 2009);\\n\\nNewman v. Metrish, 543 F.3d 793, 796‐97 (6th Cir. 2008). Indeed, we ʺmay not\\n\\ncredit inferences within the realm of possibility when those inferences are\\n\\nunreasonable.ʺ United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006).\\n\\n ʺ[W]here a fact to be proved is also an element of the offense ‐‐ here,\\n\\n[drug quantity] ‐‐ it is not enough that the inferences in the governmentʹs favor\\n\\nare permissible. We must also be satisfied that the inferences are sufficiently\\n\\nsupported to permit a rational juror to find that the element, like all elements, is\\n\\nestablished beyond a reasonable doubt.ʺ United States v. Martinez, 54 F.3d 1040,\\n\\n1043 (2d Cir. 1995); see also Sand et al., supra, § 6.01 (ʺ[W]hether based upon direct\\n\\nor circumstantial evidence, or upon logical, reasonable inferences drawn from\\n\\nsuch evidence, [the jury] must be satisfied of the guilt of the defendant beyond a\\n\\nreasonable doubt before [it] may convict.ʺ). ʺ[I]t would not satisfy the\\n\\nConstitution to have a jury determine that the defendant is probably guilty.ʺ\\n\\nUnited States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks\\n\\nand alternations omitted).\\n\\n\\n\\n\\n 15\\n\\f The drug quantity attributable to a defendant knowingly\\n\\nparticipating in a drug distribution conspiracy includes (1) transactions in which\\n\\nhe participated directly, (2) transactions in which he did not personally\\n\\nparticipate, but where he knew of the transactions or they were reasonably\\n\\nforeseeable to him, and (3) quantities he agreed to distribute or possess with\\n\\nintent to distribute ʺregardless of whether he ultimately committed the\\n\\nsubstantive act.ʺ United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).6\\n\\n To prove the quantity by one of these means beyond a reasonable\\n\\ndoubt, the government must introduce specific evidence of drug quantities, or\\n\\nevidence from which quantity can, through inference, be logically approximated\\n\\nor extrapolated. See United States v. Archer, 671 F.3d 149, 163 (2d Cir. 2011)\\n\\n(requiring ʺspecific evidenceʺ of quantity to sustain quantity‐based\\n\\nenhancement). In the absence of such evidence, a juryʹs finding as to drug\\n\\nquantity is nothing but ʺsurmise and conjecture.ʺ United States v. Shonubi, 998\\n\\nF.2d 84, 90 (2d Cir. 1993). Compare United States v. Shonubi (ʺShonubi IIʺ), 103 F.3d\\n\\n1085, 1092 (2d Cir. 1997) (approving of method of testing four randomly selected\\n\\nheroin balloons to estimate quantity of heroin contained in 103 balloons found\\n\\n\\n\\n\\n6 The district court correctly charged the jury on this law. Trial Tr. at 573‐74.\\n 16\\n\\finside defendantʹs body), with id. (disapproving of extrapolation from quantity of\\n\\neighth trip that each of seven prior trips contained the same quantity). Thus,\\n\\nwhile quantities of controlled substances in a drug distribution conspiracy\\n\\nprosecution may be determined through extrapolation, approximation, or\\n\\ndeduction, there ordinarily must be evidence of known quantities, which are\\n\\nsufficiently representative of the unknown quantities and from which an\\n\\napproximation of the unknown quantities can logically be derived. See Archer,\\n\\n671 F.3d at 163.\\n\\n Two of our decisions, though summary orders, provide a framework\\n\\nfor understanding the role of representative proof in proving drug quantity. In\\n\\nUnited States v. Adames, the defendant was convicted at trial of conspiracy to\\n\\ndistribute five or more kilograms of cocaine, and he challenged the sufficiency of\\n\\nthe evidence of quantity. 727 F. Appʹx 12 (2d Cir. 2018) (summary order). The\\n\\ngovernment introduced evidence linking the defendant to four seized packages.\\n\\nId. at 13. The seized packages contained one kilogram, 530 grams, two\\n\\nkilograms, and 406 grams of cocaine, respectively, Governmentʹs Brief at 5‐9,\\n\\nAdames, 727 F. Appʹx 12 (2d Cir. 2018) (No. 17‐1254) (describing packages 1, 4, 5,\\n\\nand 9), for a total of 3.936 kilograms, Adames, 727 F. Appʹx at 13. Other evidence\\n\\n\\n\\n 17\\n\\flinked the defendant to five additional packages of unknown quantity, which the\\n\\ngovernment was unable to seize. Id. But one of these unseized packages\\n\\n(package 6) was tracked online from an IP address associated with the\\n\\ndefendantʹs home and weighed approximately the same as a seized package\\n\\n(package 5) that contained two kilograms of cocaine. Governmentʹs Brief, supra,\\n\\nat 8‐9. Moreover, package 6 was briefly examined before delivery, and trial\\n\\ntestimony indicated that it contained ʺbrick shapedʺ objects. Id. In addition,\\n\\nalthough the other unseized packages apparently were never weighed, ʺphone\\n\\nrecords, witness testimony, and other circumstantial evidence establish[ed] that\\n\\nthese too were parcels of cocaine.ʺ Adames, 727 F. Appʹx at 13. In light of all the\\n\\ncircumstances, we held that ʺthe Government presented sufficient evidence for a\\n\\nreasonable jury to infer the existence of an additional 1.06 kilograms from the\\n\\naggregate of the additional unseized packages.ʺ Id. at 14.\\n\\n In United States v. Martinez, the defendant challenged a drug‐\\n\\nquantity enhancement at sentencing. 133 F. Appʹx 762 (2d Cir. 2005) (summary\\n\\norder).7 It was undisputed that the defendant was responsible for helping to\\n\\n\\n\\n7 The proof necessary to satisfy an element of a charged crime beyond a reasonable\\ndoubt is obviously more stringent than the proof required to establish that a sentencing\\nenhancement is warranted by the preponderance of the evidence. See generally United\\nStates v. Booker, 543 U.S. 220 (2005).\\n 18\\n\\fbuild nine vehicle ʺtrapsʺ in three cars used to hide packages of cocaine. Id. at\\n\\n763‐64. The government seized cocaine in one of those traps, which contained 16\\n\\nkilograms, and evidence showed that the defendant carried 19 kilograms from\\n\\nanother vehicle. Id. at 765. A trial witness testified that he saw the defendant\\n\\ncarrying another 20 kilograms of cocaine. Id. The district court concluded that\\n\\nthe defendant was responsible for over 150 kilograms ʺby averaging the three\\n\\nknown quantities attributable to [the defendant] ‐‐ 16, 19, and 20 kilograms ‐‐ and\\n\\nmultiplying by nine, the number of traps [defendant] built.ʺ Id. We vacated the\\n\\ndrug‐quantity enhancement, noting that ʺ[t]he average quantity of cocaine seized\\n\\nor unloaded from the three cars is not ʹspecific evidenceʹ of the quantity of\\n\\ncocaine actually transported in the nine traps built by [the defendant]ʺ because ʺit\\n\\nis quite possible that the traps were used to transport some other contrabandʺ\\n\\nand the evidence relied upon was not sufficiently reliable. Id.\\n\\n Adames and Martinez illustrate how the total drug quantity\\n\\nattributable to a defendant can (and cannot) be inferred or extrapolated from\\n\\nknown quantities. In Adames, it was reasonable to infer from evidence of four\\n\\nseized packages, each containing a range of from 406 grams to two kilograms of\\n\\ncocaine, that a total of at least an additional 1.06 kilograms of cocaine was\\n\\n\\n\\n 19\\n\\fcontained in five unseized packages, one of which was known to have a similar\\n\\nweight to a seized package containing two kilograms of cocaine. The seized\\n\\npackages were sufficiently representative of the unseized packages to support\\n\\nthe inference that the unseized packages contained enough cocaine to reach the\\n\\nquantity threshold. By contrast, in Martinez, it was not reasonable to infer from\\n\\nevidence of two vehicle traps containing 16 and 19 kilograms of cocaine and\\n\\ntestimony that the defendant carried a package of approximately 20 kilograms of\\n\\ncocaine that each of nine traps in three different cars contained the average of the\\n\\nthree known quantities. The seized packages were not sufficiently representative\\n\\nof the unseized packages to support the inference that the seized and unseized\\n\\npackages contained a similar quantity of cocaine. A similar lack of\\n\\nrepresentativeness arose in Shonubi II, in which we rejected the inference that\\n\\neach of seven prior trips contained the same quantity of drugs as was seized in\\n\\nthe eighth trip. 103 F.3d at 1092.\\n\\nII. Application\\n\\n The government argues that it presented evidence sufficient for the\\n\\njury to find beyond a reasonable doubt that an additional 11 grams or more of\\n\\nheroin was attributable to the Pauling‐Low conspiracy. It relies first on the July 3\\n\\n\\n\\n 20\\n\\ftelephone call and second on the evidence of an ongoing relationship between\\n\\nPauling and Low. We discuss each in turn.\\n\\n 1. The July 3 Phone Call\\n\\n The government argues that the evidence permitted the jury to infer\\n\\nthat an additional 14 grams of heroin was attributable to the Pauling‐Low\\n\\nconspiracy by virtue of the July 3 phone call, in which the buyer mentioned that\\n\\nhe wanted the ʺsame thing as last timeʺ while placing an order for 14 grams of\\n\\nheroin. Appʹx at 122. While we agree that the words ʺsame thing as last timeʺ\\n\\ncould have been a reference to a prior 14‐gram sale of heroin by Pauling to Steve,\\n\\nwe hold that no reasonable jury could have found beyond a reasonable doubt\\n\\nthat those 14 grams were sourced by Low. See Piaskowski v. Bett, 256 F.3d 687, 693\\n\\n(7th Cir. 2001) (ʺAlthough a jury may infer facts from other facts that are\\n\\nestablished by inference, each link in the chain of inferences must be sufficiently\\n\\nstrong to avoid a lapse into speculation.ʺ).\\n\\n On the present record, the jury could not rationally conclude beyond\\n\\na reasonable doubt that a specific yet temporally unknown transaction, the\\n\\nexistence of which is evidenced solely by five words ‐‐ which were not uttered by\\n\\neither Pauling or Low ‐‐ involved heroin provided by Low. The jury did not hear\\n\\n\\n\\n 21\\n\\fevidence as to who provided the heroin in this prior transaction, when the\\n\\ntransaction occurred, or what the circumstances were. To conclude so much on\\n\\nthe basis of so little amounts to impermissible speculation. Indeed, trial\\n\\ntestimony and wiretap evidence established that Pauling had other suppliers,\\n\\nany one of whom could have supplied the heroin for that prior transaction. See\\n\\nTrial Tr. at 175, 183; Appʹx at 83‐84, 88, 98, 100, 103, 127. And while the\\n\\ngovernment introduced evidence that Pauling distributed over 200 grams of\\n\\nheroin, Appʹx at 202, it did not show that as much as half of that heroin was\\n\\nsupplied by Low. Accordingly, without something more, the jury could not\\n\\nreasonably have concluded beyond a reasonable doubt that the words ʺsame\\n\\nthing as last timeʺ referred to an additional 14 grams of heroin supplied by Low.\\n\\n 2. The Ongoing Relationship\\n\\n The government argues that even if the July 3 phone call did not\\n\\nprove that Pauling purchased an additional 14 grams of heroin from Low, it\\n\\nwould have been rational for the jury to conclude, based on the evidence of their\\n\\nongoing relationship, that Pauling and Low conspired to distribute at least an\\n\\nadditional 11 grams of heroin. Proof of drug quantity may be established\\n\\nthrough proof of an agreement to distribute or possess with intent to distribute,\\n\\n\\n\\n 22\\n\\fregardless of whether the substantive act was actually completed. See Jackson,\\n\\n335 F.3d at 181. The government asserts that there is ʺconcrete evidence of\\n\\nPaulingʹs specific plans to continue to fill large orders through Low, which were\\n\\ndisrupted by Paulingʹs arrest,ʺ and that the jury could reasonably have inferred\\n\\nthat this agreement contemplated 11 or more grams of heroin. Governmentʹs Br.\\n\\nat 35.\\n\\n In support of this argument, the government points to the following.\\n\\nFirst, Pauling and Low mixed and cut heroin together. Second, Pauling sold 89\\n\\ngrams of heroin sourced from Low. Third, Pauling and Low discussed a\\n\\ncustomer from Queens, which Pauling described as ʺgoodʺ and ʺalready\\n\\nestablished.ʺ Appʹx at 116. Fourth, Pauling knew that Lowʹs operation was large\\n\\nenough to require one worker and a stash house. Finally, Pauling and Low had\\n\\nspecific discussions in which they appeared to contemplate future distribution of\\n\\ndrugs. For instance, on July 12, just before Pauling was arrested, Low told\\n\\nPauling that he had ʺa nice amount of that shit left,ʺ to which Pauling replied, ʺI\\n\\ngot you, I, Iʹm a be hittinʹ you . . . when, um, dude calls me.ʺ Id. at 146.\\n\\nAccording to the government, it would be rational for a jury to infer, for\\n\\n\\n\\n\\n 23\\n\\fexample, that a ʺʹniceʹ amount was at least enough to fill one of Paulingʹs large\\n\\norders,ʺ that is, between 14 and 30 grams. Governmentʹs Br. at 35.\\n\\n Over the course of the 17‐day period from June 26 to July 12, 2016,\\n\\nLow supplied Pauling with 89 grams of heroin over four transactions ‐‐ an\\n\\naverage of 22.25 grams per transaction, with a low of 14 grams and a high of 30\\n\\ngrams. While it is certainly within the realm of possibility that the reference to ʺa\\n\\nnice amountʺ meant 14 grams or 30 grams of heroin, it also could have referred\\n\\nto a lesser quantity ‐‐ something more than the one‐ or two‐gram sales that\\n\\nsometimes occurred but less than the 11 grams needed to reach the 100‐gram\\n\\nthreshold. See Quattrone, 441 F.3d at 169 (noting that ʺcourts may not credit\\n\\ninferences within the realm of possibility when those inferences are\\n\\nunreasonableʺ). On the present record, the conclusion that ʺa nice amountʺ\\n\\nmeans 11 grams or more may be reasonable speculation, but it is still speculation\\n\\nand therefore is an insufficient basis on which to rest a guilty verdict.8 See\\n\\n\\n\\n8 In one transaction, Pauling tells a buyer, ʺI only got 10 grams here.ʺ Appʹx at 199.\\nIt might be said that ʺonly . . . 10 gramsʺ contrasts with, rather than reflects, a ʺnice\\namount,ʺ thus enabling the inference that a ʺnice amountʺ is something more than 10\\ngrams of heroin. But considered in context, no such inference is possible. Pauling told\\nthe purchaser that he ʺonlyʺ had 10 grams because he did not have enough heroin to fill\\nthe buyerʹs 20‐gram order. See Trial Tr. at 123:21‐23 (ʺ[H]e didnʹt have enough. He\\ndidnʹt have what I ordered. I ordered 20, and he didnʹt have enough grams of heroin to\\ngive me. He only had ten . . . grams.ʺ).\\n 24\\n\\fLangston, 630 F.3d at 314; see also OʹLaughlin, 568 F.3d at 302 (ʺThe instant facts\\n\\nmay support a reasonable speculation that OʹLaughlin was the assailant, but not\\n\\nsufficient evidence to establish his guilt. Taken together, the circumstantial\\n\\nevidence in this case, even when drawing all reasonable inferences in favor of the\\n\\nprosecution, does not permit any rational jury to conclude that OʹLaughlin was\\n\\nthe assailant beyond a reasonable doubt.ʺ); Newman, 543 F.3d at 796‐97\\n\\n(ʺAlthough circumstantial evidence alone can support a conviction, there are\\n\\ntimes that it amounts to only a reasonable speculation and not to sufficient\\n\\nevidence. . . . [W]here the evidence taken in the light most favorable to the\\n\\nprosecution creates only a reasonable speculation that [an element of the crime is\\n\\nmet], there is insufficient evidence to satisfy the Jackson standard.ʺ). Because of\\n\\nthe lack of representative proof of the quantity represented by a ʺniceʺ amount,\\n\\nthe instant case is more like Martinez and Shonubi II than Adames.\\n\\n And even assuming it was reasonable for the jury to infer that\\n\\nPauling and Low conspired to distribute an additional 11 or more grams of\\n\\nheroin, ʺ[w]e must also be satisfied that the inferences are sufficiently supported\\n\\nto permit a rational juror to find that the [quantity] element . . . is established\\n\\nbeyond a reasonable doubt.ʺ Martinez, 54 F.3d at 1043. In this case, we are not\\n\\n\\n\\n 25\\n\\fsatisfied that the proof adduced by the government at trial could permit any\\n\\nrational trier of fact to conclude, beyond a reasonable doubt, that Pauling and\\n\\nLow conspired to distribute an additional 11 grams of heroin. See Jackson, 443\\n\\nU.S. at 320 (ʺ[I]t could not seriously be argued that such a ʹmodicumʹ of evidence\\n\\ncould by itself rationally support a conviction beyond a reasonable doubt.ʺ).\\n\\nAccordingly, the district court correctly determined that there was insufficient\\n\\nevidence to support the juryʹs finding that Pauling and Low conspired to\\n\\ndistribute 100 grams or more of heroin and, thus, properly granted Paulingʹs\\n\\nRule 29 motion.\\n\\n Our conclusion is supported by decisions of other courts. Many of\\n\\nour sister circuits have reversed convictions where proof of drug quantity was\\n\\nspeculative on facts analogous to these. See United States v. Navarette‐Aguilar, 813\\n\\nF.3d 785, 793, 796 (9th Cir. 2015) (rejecting governmentʹs argument that ʺpatternʺ\\n\\nof drug dealing between conspirators ʺallowed the jury to infer a preexisting\\n\\nagreement to distributeʺ 250 additional grams of heroin because ʺit would be\\n\\nspeculative to infer that the defendants agreed to any future transactions such\\n\\nthat they would reach the one kilogram markʺ); United States v. Daniels, 723 F.3d\\n\\n562, 571 (5th Cir. 2013) (rejecting governmentʹs argument that distribution of five\\n\\n\\n\\n 26\\n\\fkilograms of cocaine was inferable from evidence of distribution of roughly 1.5\\n\\nkilograms of cocaine to one buyer, combined with evidence of sales to six other\\n\\nbuyers, because, ʺwithout more evidence as to the quantity of these other sales,ʺ\\n\\nfinding of five kilograms was mere speculation); United States v. Hickman, 626\\n\\nF.3d 756, 768‐70 (4th Cir. 2010) (rejecting governmentʹs argument that the four‐\\n\\nmonth course of conduct between supplier and distributor was ʺpart of\\n\\nsomething largerʺ such that jury could infer an additional 174 grams of heroin\\n\\nbecause it would be based on a ʺhunch or intuition,ʺ and jury cannot ʺsimply\\n\\nguess at the magnitude or frequency of unknown criminal activityʺ (internal\\n\\nquotation marks omitted)).\\n\\n To the extent the government separately argues that the substantial\\n\\ninteractions between Pauling and Low proved that additional quantities\\n\\ndistributed by Low were reasonably foreseeable to Pauling, we agree that such\\n\\nan inference would be reasonable. But even so, based on the evidence here, no\\n\\njury could reasonably conclude that any specific quantity of heroin was\\n\\nattributable to Low, beyond the undisputed 89 grams. The fact that Lowʹs\\n\\noperation involved a stash house and a worker, and that Pauling was aware of\\n\\nthese facts, is simply not specific evidence of drug quantity. In the absence of\\n\\n\\n\\n 27\\n\\fany evidence indicating the quantities generally (or specifically) associated with\\n\\nLowʹs operation, quantity is not inferable. There is, therefore, no additional\\n\\nquantity attributable to Low that Pauling could fairly be said to have reasonably\\n\\nforeseen.\\n\\n * * *\\n\\n Although this is a close case that tests the boundary that exists\\n\\nbetween the drawing of a permissible inference and impermissible speculation,\\n\\nonly surmise and guesswork could lead a jury to determine that Pauling and\\n\\nLow conspired to distribute an additional 11 grams of heroin. ʺWe are obliged to\\n\\nview the evidence with all reasonable inferences drawn in the Governmentʹs\\n\\nfavor, but we may not permit that rule to displace the even more important rule\\n\\nthat all elements of an offense must be proven beyond a reasonable doubt.ʺ\\n\\nMartinez, 54 F.3d at 1049 (Newman, J., dissenting). While one could argue, based\\n\\non reasonable speculation, that it was ʺlikelyʺ or ʺprobableʺ that Low and Pauling\\n\\nagreed to distribute an additional 11 grams of heroin, the government had to\\n\\nprove more than likelihood or probability ‐‐ it had to prove an agreement to\\n\\ndistribute (or possess with intent to distribute) an additional 11 or more grams of\\n\\nheroin beyond a reasonable doubt. See Lorenzo, 534 F.3d at 159 (noting that ʺit\\n\\n\\n\\n 28\\n\\fwould not satisfy the Constitution to have a jury determine that the defendant is\\n\\nprobably guiltyʺ (internal quotation marks and alternations omitted)).\\n\\n Because the government failed to do so, the district court correctly\\n\\ndetermined, viewing all of the evidence in the light most favorable to the\\n\\ngovernment and crediting every inference in its favor, that the evidence at trial\\n\\nwas insufficient to support a jury finding that 100 or more grams of heroin were\\n\\nattributable to the Pauling‐Low conspiracy.\\n\\n CONCLUSION\\n\\n For the reasons set forth above, the judgment of the district court is\\n\\nAFFIRMED. The case is REMANDED for sentencing.\\n\\n\\n\\n\\n 29\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399801/\", \"author_raw\": \"CHIN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"KEARSE"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622548/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellant, v. John PAULING, A/K/A JJ, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2539‐cr\nUnited States v. Pauling\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n August Term 2018\n\n (Argued: October 23, 2018 Decided: May 23, 2019)\n\n Docket No. 17‐2539‐cr\n\n\n UNITED STATES OF AMERICA,\n\n Appellant,\n\n v.\n\n JOHN PAULING, A/K/A JJ,\n\n Defendant‐Appellee.\n\n\n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE SOUTHERN DISTRICT OF NEW YORK\n\n\nBefore:\n KATZMANN, Chief Judge, and KEARSE and CHIN, Circuit Judges.\n\n\n\n Appeal by the government from an opinion and order of the United\n\nStates District Court for the Southern District of New York (Oetken, J.) granting\n\ndefendant‐appelleeʹs motion to vacate a portion of the juryʹs guilty verdict. After\n\fa four‐day trial, the jury convicted defendant‐appellee of conspiracy to distribute\n\n100 grams or more of heroin as well as several other narcotics and firearms\n\nviolations. Defendant‐appellee moved to vacate the juryʹs verdict on the\n\nconspiracy count, on the basis that the evidence at trial was insufficient to\n\nestablish the quantity element of the crime. The district court granted the\n\nmotion, vacated the juryʹs finding as to quantity, and entered a verdict of guilty\n\nto a lesser included offense. The government appeals, arguing that it introduced\n\nevidence sufficient to prove quantity and that therefore the juryʹs verdict should\n\nbe reinstated.\n\n AFFIRMED and REMANDED for sentencing.\n\n\n JASON M. SWERGOLD, Assistant United States Attorney\n (Amanda L. Houle, Micah W.J. Smith, Assistant\n United States Attorneys, on the brief), for Geoffrey\n S. Berman, United States Attorney for the\n Southern District of New York, New York, New\n York, for Appellant.\n\n YUANCHUNG LEE, Federal Defenders of New York, Inc.,\n New York, New York, for Defendant‐Appellee.\n ___________\n\nCHIN, Circuit Judge:\n\n In this case, a jury convicted defendant‐appellee John Pauling of\n\nconspiring to distribute or possess with the intent to distribute 100 grams or\n\n 2\n\fmore of heroin. The parties agree that the government was required to prove\n\nthat the heroin in question was the subject of a conspiracy between Pauling and\n\none of his suppliers, referred to as ʺLowʺ (the ʺPauling‐Low conspiracyʺ), and\n\nthat the government proved beyond a reasonable doubt that 89 grams of heroin\n\nwere attributable to the Pauling‐Low conspiracy. The parties disagree, however,\n\nas to whether the government proved that the Pauling‐Low conspiracy involved\n\nthe additional 11 grams of heroin necessary to reach the 100‐gram threshold.\n\n The district court granted Paulingʹs motion pursuant to Federal Rule\n\nof Criminal Procedure 29 to set aside his conviction on the conspiracy count on\n\nthe ground that the evidence introduced at trial failed to establish that an\n\nadditional 11 grams of heroin were attributable to the Pauling‐Low conspiracy.\n\nInstead of entering judgment convicting Pauling of violating 21 U.S.C.\n\n§§ 841(a)(1), 841(b)(1)(B) and 846, it entered judgment finding Pauling guilty of a\n\nlesser included offense, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.\n\nThe former offense carries a five‐year mandatory sentence for violations\n\ninvolving 100 grams or more of heroin, while the latter offense carries no\n\n\n\n\n 3\n\fmandatory minimum and contains no quantity element.1 The government\n\nappeals.\n\n We conclude that the evidence at trial was insufficient to permit a\n\nreasonable jury to find beyond a reasonable doubt that the Pauling‐Low\n\nconspiracy involved an additional 11 grams of heroin. Accordingly, we affirm\n\nand remand for sentencing.\n\n BACKGROUND\n\nA. Factual Background2\n\n Between May 25 and July 14, 2016, the Drug Enforcement\n\nAdministration (ʺDEAʺ) intercepted phone calls between Pauling and various\n\nassociates, including an individual named ʺLow.ʺ On July 14, Pauling was\n\narrested by authorities. Upon his arrest, agents seized from Paulingʹs apartment\n\napproximately 600 glassine bags, a digital scale, materials that could be used as a\n\n\n\n\n1 See United States v. Facen, 812 F.3d 280, 283 n.1 (2d Cir. 2016) (noting that a\njudgment of conviction under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) is ʺin effect a\nlesser‐included offenseʺ of 21 U.S.C. § 841(b)(1)(B) ʺwithout a mandatory minimum\nsentenceʺ).\n2 Our statement of facts views the evidence in the light most favorable to the\ngovernment, crediting any inference that the jury might have drawn in its favor. See\nUnited States v. Rosemond, 841 F.3d 95, 99‐100 (2d Cir. 2016).\n 4\n\fcutting agent, and other paraphernalia associated with the distribution of\n\ncontrolled substances.\n\n Pauling concedes that the government established at trial that he\n\nand Low conspired to distribute 89 grams of heroin. This was shown through\n\nwiretap evidence of four transactions. On June 26, 2016, Pauling purchased 30\n\ngrams of heroin from Low for resale to a customer named ʺFlow.ʺ On June 27,\n\nPauling combined 10 grams of heroin he received from Low with 20 grams of a\n\ncutting agent, for a total of 30 grams of heroin. On July 3, Pauling requested 14\n\ngrams of heroin from Low for a customer named ʺSteve.ʺ Finally, on July 11,\n\nLow supplied Pauling with 11 grams of heroin, again for Steve, which Pauling\n\ncut for a total of 15 grams. The four transactions thus involved a total of 89\n\ngrams of heroin.3\n\n The conversation between Pauling and Steve about the July 3\n\ntransaction is at issue in this appeal. At 1:16 p.m. that day, Pauling spoke to\n\nSteve about the quantity of heroin Steve wanted to order:\n\n\n\n\n3 Pauling concedes that the quantity of the heroin in question is the weight with\nthe cutting agent included. See 21 U.S.C. § 841(b)(1)(B)(i) (providing penalties for the\ndistribution or possession with intent to distribute ʺ100 grams or more of a mixture or\nsubstance containing a detectable amount of heroinʺ). The record indicates that at the\ntime of the conspiracy, a gram of heroin sold for approximately $65.\n 5\n\f PAULING: [T]ell me, the count, thatʹs, you know,\n tomorrow.\n STEVE: Iʹll meet you on, hold on one second. Iʹm on 17, as a\n matter of fact, same thing as last time, same thing [as] last\n time.\n PAULING: Where was it? I forgot, shit because there was\n so many people.\n STEVE: Hold on, right, right. Iʹma go to, uh, 14th floor.\n\nAppʹx at 122. The parties agree that the floor number was code for drug\n\nquantity, in grams. Approximately three hours later, at 4:04 p.m., Pauling called\n\nLow:\n\n PAULING: Yo um, how we gonna do this cause my man\n wants four‐fourteen right and he be down tomorrow and I\n got some other people who want ‐‐\n LOW: 14?\n PAULING: Huh?\n LOW: You said 14?\n PAULING: Yeah, and I got these other people that want a\n gram‐, two grams shit like that.\n\nId. at 124. There is no dispute that the July 3 calls account for 14 grams of heroin\n\nattributable to the Pauling‐Low conspiracy, and this amount is included in the 89\n\ngrams discussed above. The parties disagree, however, about whether Steveʹs\n\nreference to ʺsame thing as last timeʺ during the 1:16 p.m. call referred to a prior\n\n14‐gram transaction of heroin supplied by Low. The government argues that it\n\ndid and that the total quantity of heroin attributable to the Pauling‐Low\n\n\n 6\n\fconspiracy was therefore 103 grams ‐‐ just over the 100‐gram threshold required\n\nfor the conspiracy count.\n\n The wiretaps also provided information about the relationship\n\nbetween Pauling and Low. Pauling owed Low money. Pauling was aware that\n\nLow had a stash house for his narcotics, and he was aware that Lowʹs associate\n\nʺPlayʺ worked at the stash house. Pauling and Low discussed prices. On more\n\nthan one occasion, they discussed in detail the process of cutting narcotics and\n\nthe benefits of certain cutting agents.4 Pauling also indicated on several\n\noccasions that he would help sell Lowʹs product.5 The government argues that\n\n\n\n4 Appʹx at 114 (PAULING: ʺIʹm mixing this shit right now. . . . Iʹm squeezing it in\nmy hand . . . . I ainʹt gonna put it in no press. . . . I told you I put the strainer, right?\nAnd then [unintelligible] I had to take a hammer and break it with a hammer, cut it\nsmall and then I mashed it up . . . .ʺ); id. at 124‐25 (PAULING: ʺIʹma bring the machine\nso we could press it all. . . . [Y]ou donʹt wanna smash it up? I mean you donʹt want to\npress it? LOW: Yeah. Iʹve been wanted to do that all the week, nigga. Iʹve been calling\nyou man. . . . PAULING: Aight, so we can do it tomorrow then.ʺ); id. at 144‐45\n(PAULING: ʺThey love it. Donʹt touch it. They love it. . . . [I]f we didnʹt have that\nwhat we did last night, it would be too sticky . . . . And it was like all gooey. . . . [T]he\nonly thing that gets it like that is what we did last night. . . . Thatʹs what makes it better.\n. . . And what I want to, right? Is . . . lie it out and, um, dry it out all the, the sweetness.\n. . . [D]onʹt get no mix from nowhere else, just use that.ʺ).\n5 Appʹx at 130 (PAULING: ʺIʹll help you get rid of that shit . . . this week.\n[T]omorrow that shit will be gone.ʺ); id. at 116 (PAULING: ʺ[T]he queens thing is good.\n. . . [I]tʹs already established.ʺ); id. at 124 (PAULING: ʺI got some other people who\nwant . . . a gram‐, two grams shit like that.ʺ); id. at 145‐46 (PAULING: ʺIʹm a move it off\nfor you. . . . Iʹm spend it with you anyway. . . . Iʹm a get rid of all that.ʺ); id. (LOW:\nʺ[W]e got a nice amount of that shit left, too. . . . PAULING: I got you, I, Iʹm a be hittinʹ\nyou . . . when, um, dude calls me.ʺ).\n 7\n\fthis evidence proved circumstantially that Pauling and Low conspired to\n\ndistribute at least another 11 grams of heroin beyond the 89 grams discussed\n\nabove.\n\n B. Procedural History\n\n On July 14, 2016, the DEA arrested Pauling for his alleged\n\ninvolvement with guns and drugs in the New York City area. The government\n\nindicted Pauling on August 18, 2016, on five counts. The government filed a\n\nsuperseding indictment on January 19, 2017, charging Pauling with eight counts:\n\n(a) conspiring to distribute and to possess with intent to distribute 100 grams or\n\nmore of mixtures containing heroin, in violation of 21 U.S.C. §§ 841(a)(1),\n\n841(b)(1)(B), and 846 (ʺCount Oneʺ); (b) three counts of distributing and\n\npossessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812,\n\n841(a)(1), and 841(b)(1)(C); (c) one count of firearms trafficking, in violation of 18\n\nU.S.C. § 922(a)(1)(A) and (a)(2); (d) one count of using, carrying, or possessing a\n\nfirearm in connection with the heroin distribution conspiracy charged in Count\n\nOne, in violation of 18 U.S.C. § 924(c) (ʺCount Sixʺ); and (e) two counts of\n\npossessing a firearm after sustaining a felony conviction, in violation of 18 U.S.C.\n\n§ 922(g)(1).\n\n\n\n 8\n\f Trial began on February 13, 2017. At the close of the governmentʹs\n\ncase‐in‐chief on February 15, Pauling moved for a judgment of acquittal as to\n\nCount One under Federal Rule of Criminal Procedure 29, citing insufficient\n\nevidence to sustain a conviction. The court reserved decision. On February 16,\n\nPauling conceded in his closing argument that he was guilty of all counts except\n\nfor Counts One and Six. The jury returned its verdict later that day, finding\n\nPauling guilty of all but Count Six.\n\n On March 24, 2017, Pauling renewed his motion under Rule 29 to\n\nvacate and set aside the portion of the juryʹs verdict on Count One finding that at\n\nleast 100 grams of heroin were attributable to the Pauling‐Low conspiracy.\n\nPauling moved in the alternative for a new trial pursuant to Rule 33 as to that\n\ncount. He argued that the July 3 call could not support a jury finding of 28\n\ngrams by including the alleged prior 14‐gram transaction and that the 100‐gram\n\nthreshold was not otherwise proven beyond a reasonable doubt. The\n\ngovernment opposed both motions, arguing that the jury could have reasonably\n\ninferred from the July 3 call that the ʺsame thing as last timeʺ referred to an\n\nearlier transaction in which Pauling sold Steve 14 grams of heroin sourced from\n\nLow. It argued that this prior 14‐gram transaction should be included, thus\n\n\n\n 9\n\fbringing the total quantity attributable to the Pauling‐Low conspiracy to 103\n\ngrams. It argued alternatively that the jury could reasonably infer from the\n\nʺclose working relationshipʺ between Pauling and Low that their conspiracy\n\nextended ʺwell beyondʺ 100 grams. Appʹx at 216‐17.\n\n On June 12, 2017, the district court granted Paulingʹs motion to\n\nvacate and set aside his conviction on Count One and entered a verdict of guilty\n\nto a lesser included offense. The district court also conditionally granted\n\nPaulingʹs motion for a new trial, pending the outcome of this appeal. Paulingʹs\n\nsentencing, scheduled for September 13, 2017, was stayed pending this appeal.\n\n DISCUSSION\n\n Pauling does not challenge the juryʹs finding that he participated in\n\na conspiracy with Low to distribute heroin. Nor does he dispute that the\n\nevidence established that he directly participated with Low in the distribution of\n\n89 grams of heroin. We are therefore presented with a single, discrete question:\n\nWhether the government presented evidence sufficient for the jury to find\n\nbeyond a reasonable doubt that an additional 11 grams or more of heroin was\n\nattributable to the Pauling‐Low conspiracy. The government argues that it did\n\n\n\n\n 10\n\fso, relying first on the July 3 telephone call and second on the evidence of an\n\nongoing relationship between Pauling and Low.\n\nI. Applicable Law\n\n The quantity of drugs involved in a violation of § 841(b)(1)(B) is an\n\nelement of the charged offense, see United States v. Gonzalez, 420 F.3d 111, 131 (2d\n\nCir. 2005), and the government has the burden of proving the charged quantity\n\nbeyond a reasonable doubt, id. at 120. The quantity element is met only if ʺa\n\nsingle conspiracy,ʺ rather than ʺseparate agreements [that] may have been\n\ncharged under the umbrella of a single conspiracy count,ʺ crosses the quantity\n\nthreshold. United States v. Barnes, 158 F.3d 662, 670‐71 (2d Cir. 1998). Thus, while\n\nthe evidence at trial established that Pauling conspired to distribute over 200\n\ngrams of heroin with various individuals, see Appʹx at 202, it was the\n\ngovernmentʹs burden with respect to Count One to prove that 100 or more of\n\nthose grams were attributable to a single conspiracy ‐‐ the Pauling‐Low\n\nconspiracy.\n\n Due process requires that essential elements of a crime be proven\n\nbeyond a reasonable doubt to ensure that ʺno person shall be made to suffer the\n\nonus of a criminal conviction except upon sufficient proof.ʺ Jackson v. Virginia,\n\n\n\n 11\n\f443 U.S. 307, 316 (1979); see also In re Winship, 397 U.S. 358, 364 (1970). Rule 29 of\n\nthe Federal Rules of Criminal Procure is one means of protecting this\n\nconstitutional right; it enables the district court to vacate a conviction if it\n\nconcludes that ʺno rational trier of fact could find guilt beyond a reasonable\n\ndoubt.ʺ Jackson, 443 U.S. at 317; see also United States v. Coplan, 703 F.3d 46, 62 (2d\n\nCir. 2012) (ʺ[W]e will uphold the judgment[] of conviction if ʹany rational trier of\n\nfact could have found the essential elements of the crime beyond a reasonable\n\ndoubt.ʹʺ (quoting Jackson, 443 U.S. at 319)). We review de novo a district courtʹs\n\ngrant of a Rule 29 motion based on a finding that the trial evidence was\n\ninsufficient to support the juryʹs verdict, applying the same standard the district\n\ncourt applies in review of the evidence. United States v. Truman, 688 F.3d 129, 139\n\n(2d Cir. 2012).\n\n A defendant challenging a juryʹs guilty verdict ʺbears a heavy\n\nburden.ʺ United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (internal\n\nquotation marks omitted). This is because, ʺ[i]n evaluating a sufficiency\n\nchallenge, we ʹmust view the evidence in the light most favorable to the\n\ngovernment, crediting every inference that could have been drawn in the\n\ngovernment’s favor, and deferring to the jury’s assessment of witness credibility\n\n\n\n 12\n\fand its assessment of the weight of the evidence.ʹʺ Id. (quoting Coplan, 703 F.3d\n\nat 62). This deferential standard of review is ʺespecially important when\n\nreviewing a conviction of conspiracy . . . because a conspiracy by its very nature\n\nis a secretive operation, and it is a rare case where all aspects of a conspiracy can\n\nbe laid bare in court with the precision of a surgeonʹs scalpel.ʺ United States v.\n\nPitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks omitted).\n\n ʺAn inference is not a suspicion or a guess. It is a reasoned, logical\n\ndecision to conclude that a disputed fact exists on the basis of another fact that is\n\nknown to exist.ʺ Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (alterations\n\nomitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)).\n\nImpermissible speculation, on the other hand, is ʺa complete absence of\n\nprobative facts to support the conclusion reached.ʺ Lavendar v. Kurn, 327 U.S.\n\n645, 653 (1946). While we must defer to a juryʹs reasonable inferences, we give\n\nno deference to impermissible speculation. United States v. DʹAmato, 39 F.3d\n\n1249, 1256 (2d Cir. 1994).\n\n The line between permissible inference and impermissible\n\nspeculation ʺis drawn by the laws of logicʺ and not ʺjudicial idiosyncrasies.ʺ Tose\n\nv. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir. 1981), abrogated on other grounds\n\n\n\n 13\n\fby Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). As the Supreme\n\nCourt has instructed, ʺthe essential requirement is that mere speculation be not\n\nallowed to do duty for probative facts, after making due allowance for all\n\nreasonably possible inferences favoring the party whose case is attacked.ʺ\n\nGalloway v. United States, 319 U.S. 372, 395 (1943). Thus, in a criminal case, ʺthe\n\ngovernment must do more than introduce evidence ʹat least as consistent with\n\ninnocence as with guilt.ʹʺ DʹAmato, 39 F.3d at 1256 (quoting United States v.\n\nMulheren, 938 F.2d 364, 372 (2d Cir. 1991)).\n\n At times it may be difficult to distinguish between inference and\n\nspeculation, as some speculation may indeed be reasonable. Reasonable\n\nspeculation occurs when the finder of fact concludes that a disputed fact exists\n\nthat is within the realm of possibility, but the conclusion reached is nevertheless\n\nunreasonable because it is not logically based on another fact known to exist. See\n\nLangston v. Smith, 630 F.3d 310, 314, 319 (2d Cir. 2011) (noting distinction between\n\nʺreasonable speculationʺ and ʺsufficient evidenceʺ); Leonard B. Sand et al.,\n\nModern Federal Jury Instructions § 6.01 (2011) (ʺThe process of drawing\n\ninferences from facts in evidence is not a matter of guesswork or speculation. An\n\ninference is a deduction or conclusion which . . . the jury [is] permitted to draw\n\n\n\n 14\n\f. . . from facts which have been established by either direct or circumstantial\n\nevidence.ʺ); see also OʹLaughlin v. OʹBrien, 568 F.3d 287, 301‐02 (1st Cir. 2009);\n\nNewman v. Metrish, 543 F.3d 793, 796‐97 (6th Cir. 2008). Indeed, we ʺmay not\n\ncredit inferences within the realm of possibility when those inferences are\n\nunreasonable.ʺ United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006).\n\n ʺ[W]here a fact to be proved is also an element of the offense ‐‐ here,\n\n[drug quantity] ‐‐ it is not enough that the inferences in the governmentʹs favor\n\nare permissible. We must also be satisfied that the inferences are sufficiently\n\nsupported to permit a rational juror to find that the element, like all elements, is\n\nestablished beyond a reasonable doubt.ʺ United States v. Martinez, 54 F.3d 1040,\n\n1043 (2d Cir. 1995); see also Sand et al., supra, § 6.01 (ʺ[W]hether based upon direct\n\nor circumstantial evidence, or upon logical, reasonable inferences drawn from\n\nsuch evidence, [the jury] must be satisfied of the guilt of the defendant beyond a\n\nreasonable doubt before [it] may convict.ʺ). ʺ[I]t would not satisfy the\n\nConstitution to have a jury determine that the defendant is probably guilty.ʺ\n\nUnited States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks\n\nand alternations omitted).\n\n\n\n\n 15\n\f The drug quantity attributable to a defendant knowingly\n\nparticipating in a drug distribution conspiracy includes (1) transactions in which\n\nhe participated directly, (2) transactions in which he did not personally\n\nparticipate, but where he knew of the transactions or they were reasonably\n\nforeseeable to him, and (3) quantities he agreed to distribute or possess with\n\nintent to distribute ʺregardless of whether he ultimately committed the\n\nsubstantive act.ʺ United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).6\n\n To prove the quantity by one of these means beyond a reasonable\n\ndoubt, the government must introduce specific evidence of drug quantities, or\n\nevidence from which quantity can, through inference, be logically approximated\n\nor extrapolated. See United States v. Archer, 671 F.3d 149, 163 (2d Cir. 2011)\n\n(requiring ʺspecific evidenceʺ of quantity to sustain quantity‐based\n\nenhancement). In the absence of such evidence, a juryʹs finding as to drug\n\nquantity is nothing but ʺsurmise and conjecture.ʺ United States v. Shonubi, 998\n\nF.2d 84, 90 (2d Cir. 1993). Compare United States v. Shonubi (ʺShonubi IIʺ), 103 F.3d\n\n1085, 1092 (2d Cir. 1997) (approving of method of testing four randomly selected\n\nheroin balloons to estimate quantity of heroin contained in 103 balloons found\n\n\n\n\n6 The district court correctly charged the jury on this law. Trial Tr. at 573‐74.\n 16\n\finside defendantʹs body), with id. (disapproving of extrapolation from quantity of\n\neighth trip that each of seven prior trips contained the same quantity). Thus,\n\nwhile quantities of controlled substances in a drug distribution conspiracy\n\nprosecution may be determined through extrapolation, approximation, or\n\ndeduction, there ordinarily must be evidence of known quantities, which are\n\nsufficiently representative of the unknown quantities and from which an\n\napproximation of the unknown quantities can logically be derived. See Archer,\n\n671 F.3d at 163.\n\n Two of our decisions, though summary orders, provide a framework\n\nfor understanding the role of representative proof in proving drug quantity. In\n\nUnited States v. Adames, the defendant was convicted at trial of conspiracy to\n\ndistribute five or more kilograms of cocaine, and he challenged the sufficiency of\n\nthe evidence of quantity. 727 F. Appʹx 12 (2d Cir. 2018) (summary order). The\n\ngovernment introduced evidence linking the defendant to four seized packages.\n\nId. at 13. The seized packages contained one kilogram, 530 grams, two\n\nkilograms, and 406 grams of cocaine, respectively, Governmentʹs Brief at 5‐9,\n\nAdames, 727 F. Appʹx 12 (2d Cir. 2018) (No. 17‐1254) (describing packages 1, 4, 5,\n\nand 9), for a total of 3.936 kilograms, Adames, 727 F. Appʹx at 13. Other evidence\n\n\n\n 17\n\flinked the defendant to five additional packages of unknown quantity, which the\n\ngovernment was unable to seize. Id. But one of these unseized packages\n\n(package 6) was tracked online from an IP address associated with the\n\ndefendantʹs home and weighed approximately the same as a seized package\n\n(package 5) that contained two kilograms of cocaine. Governmentʹs Brief, supra,\n\nat 8‐9. Moreover, package 6 was briefly examined before delivery, and trial\n\ntestimony indicated that it contained ʺbrick shapedʺ objects. Id. In addition,\n\nalthough the other unseized packages apparently were never weighed, ʺphone\n\nrecords, witness testimony, and other circumstantial evidence establish[ed] that\n\nthese too were parcels of cocaine.ʺ Adames, 727 F. Appʹx at 13. In light of all the\n\ncircumstances, we held that ʺthe Government presented sufficient evidence for a\n\nreasonable jury to infer the existence of an additional 1.06 kilograms from the\n\naggregate of the additional unseized packages.ʺ Id. at 14.\n\n In United States v. Martinez, the defendant challenged a drug‐\n\nquantity enhancement at sentencing. 133 F. Appʹx 762 (2d Cir. 2005) (summary\n\norder).7 It was undisputed that the defendant was responsible for helping to\n\n\n\n7 The proof necessary to satisfy an element of a charged crime beyond a reasonable\ndoubt is obviously more stringent than the proof required to establish that a sentencing\nenhancement is warranted by the preponderance of the evidence. See generally United\nStates v. Booker, 543 U.S. 220 (2005).\n 18\n\fbuild nine vehicle ʺtrapsʺ in three cars used to hide packages of cocaine. Id. at\n\n763‐64. The government seized cocaine in one of those traps, which contained 16\n\nkilograms, and evidence showed that the defendant carried 19 kilograms from\n\nanother vehicle. Id. at 765. A trial witness testified that he saw the defendant\n\ncarrying another 20 kilograms of cocaine. Id. The district court concluded that\n\nthe defendant was responsible for over 150 kilograms ʺby averaging the three\n\nknown quantities attributable to [the defendant] ‐‐ 16, 19, and 20 kilograms ‐‐ and\n\nmultiplying by nine, the number of traps [defendant] built.ʺ Id. We vacated the\n\ndrug‐quantity enhancement, noting that ʺ[t]he average quantity of cocaine seized\n\nor unloaded from the three cars is not ʹspecific evidenceʹ of the quantity of\n\ncocaine actually transported in the nine traps built by [the defendant]ʺ because ʺit\n\nis quite possible that the traps were used to transport some other contrabandʺ\n\nand the evidence relied upon was not sufficiently reliable. Id.\n\n Adames and Martinez illustrate how the total drug quantity\n\nattributable to a defendant can (and cannot) be inferred or extrapolated from\n\nknown quantities. In Adames, it was reasonable to infer from evidence of four\n\nseized packages, each containing a range of from 406 grams to two kilograms of\n\ncocaine, that a total of at least an additional 1.06 kilograms of cocaine was\n\n\n\n 19\n\fcontained in five unseized packages, one of which was known to have a similar\n\nweight to a seized package containing two kilograms of cocaine. The seized\n\npackages were sufficiently representative of the unseized packages to support\n\nthe inference that the unseized packages contained enough cocaine to reach the\n\nquantity threshold. By contrast, in Martinez, it was not reasonable to infer from\n\nevidence of two vehicle traps containing 16 and 19 kilograms of cocaine and\n\ntestimony that the defendant carried a package of approximately 20 kilograms of\n\ncocaine that each of nine traps in three different cars contained the average of the\n\nthree known quantities. The seized packages were not sufficiently representative\n\nof the unseized packages to support the inference that the seized and unseized\n\npackages contained a similar quantity of cocaine. A similar lack of\n\nrepresentativeness arose in Shonubi II, in which we rejected the inference that\n\neach of seven prior trips contained the same quantity of drugs as was seized in\n\nthe eighth trip. 103 F.3d at 1092.\n\nII. Application\n\n The government argues that it presented evidence sufficient for the\n\njury to find beyond a reasonable doubt that an additional 11 grams or more of\n\nheroin was attributable to the Pauling‐Low conspiracy. It relies first on the July 3\n\n\n\n 20\n\ftelephone call and second on the evidence of an ongoing relationship between\n\nPauling and Low. We discuss each in turn.\n\n 1. The July 3 Phone Call\n\n The government argues that the evidence permitted the jury to infer\n\nthat an additional 14 grams of heroin was attributable to the Pauling‐Low\n\nconspiracy by virtue of the July 3 phone call, in which the buyer mentioned that\n\nhe wanted the ʺsame thing as last timeʺ while placing an order for 14 grams of\n\nheroin. Appʹx at 122. While we agree that the words ʺsame thing as last timeʺ\n\ncould have been a reference to a prior 14‐gram sale of heroin by Pauling to Steve,\n\nwe hold that no reasonable jury could have found beyond a reasonable doubt\n\nthat those 14 grams were sourced by Low. See Piaskowski v. Bett, 256 F.3d 687, 693\n\n(7th Cir. 2001) (ʺAlthough a jury may infer facts from other facts that are\n\nestablished by inference, each link in the chain of inferences must be sufficiently\n\nstrong to avoid a lapse into speculation.ʺ).\n\n On the present record, the jury could not rationally conclude beyond\n\na reasonable doubt that a specific yet temporally unknown transaction, the\n\nexistence of which is evidenced solely by five words ‐‐ which were not uttered by\n\neither Pauling or Low ‐‐ involved heroin provided by Low. The jury did not hear\n\n\n\n 21\n\fevidence as to who provided the heroin in this prior transaction, when the\n\ntransaction occurred, or what the circumstances were. To conclude so much on\n\nthe basis of so little amounts to impermissible speculation. Indeed, trial\n\ntestimony and wiretap evidence established that Pauling had other suppliers,\n\nany one of whom could have supplied the heroin for that prior transaction. See\n\nTrial Tr. at 175, 183; Appʹx at 83‐84, 88, 98, 100, 103, 127. And while the\n\ngovernment introduced evidence that Pauling distributed over 200 grams of\n\nheroin, Appʹx at 202, it did not show that as much as half of that heroin was\n\nsupplied by Low. Accordingly, without something more, the jury could not\n\nreasonably have concluded beyond a reasonable doubt that the words ʺsame\n\nthing as last timeʺ referred to an additional 14 grams of heroin supplied by Low.\n\n 2. The Ongoing Relationship\n\n The government argues that even if the July 3 phone call did not\n\nprove that Pauling purchased an additional 14 grams of heroin from Low, it\n\nwould have been rational for the jury to conclude, based on the evidence of their\n\nongoing relationship, that Pauling and Low conspired to distribute at least an\n\nadditional 11 grams of heroin. Proof of drug quantity may be established\n\nthrough proof of an agreement to distribute or possess with intent to distribute,\n\n\n\n 22\n\fregardless of whether the substantive act was actually completed. See Jackson,\n\n335 F.3d at 181. The government asserts that there is ʺconcrete evidence of\n\nPaulingʹs specific plans to continue to fill large orders through Low, which were\n\ndisrupted by Paulingʹs arrest,ʺ and that the jury could reasonably have inferred\n\nthat this agreement contemplated 11 or more grams of heroin. Governmentʹs Br.\n\nat 35.\n\n In support of this argument, the government points to the following.\n\nFirst, Pauling and Low mixed and cut heroin together. Second, Pauling sold 89\n\ngrams of heroin sourced from Low. Third, Pauling and Low discussed a\n\ncustomer from Queens, which Pauling described as ʺgoodʺ and ʺalready\n\nestablished.ʺ Appʹx at 116. Fourth, Pauling knew that Lowʹs operation was large\n\nenough to require one worker and a stash house. Finally, Pauling and Low had\n\nspecific discussions in which they appeared to contemplate future distribution of\n\ndrugs. For instance, on July 12, just before Pauling was arrested, Low told\n\nPauling that he had ʺa nice amount of that shit left,ʺ to which Pauling replied, ʺI\n\ngot you, I, Iʹm a be hittinʹ you . . . when, um, dude calls me.ʺ Id. at 146.\n\nAccording to the government, it would be rational for a jury to infer, for\n\n\n\n\n 23\n\fexample, that a ʺʹniceʹ amount was at least enough to fill one of Paulingʹs large\n\norders,ʺ that is, between 14 and 30 grams. Governmentʹs Br. at 35.\n\n Over the course of the 17‐day period from June 26 to July 12, 2016,\n\nLow supplied Pauling with 89 grams of heroin over four transactions ‐‐ an\n\naverage of 22.25 grams per transaction, with a low of 14 grams and a high of 30\n\ngrams. While it is certainly within the realm of possibility that the reference to ʺa\n\nnice amountʺ meant 14 grams or 30 grams of heroin, it also could have referred\n\nto a lesser quantity ‐‐ something more than the one‐ or two‐gram sales that\n\nsometimes occurred but less than the 11 grams needed to reach the 100‐gram\n\nthreshold. See Quattrone, 441 F.3d at 169 (noting that ʺcourts may not credit\n\ninferences within the realm of possibility when those inferences are\n\nunreasonableʺ). On the present record, the conclusion that ʺa nice amountʺ\n\nmeans 11 grams or more may be reasonable speculation, but it is still speculation\n\nand therefore is an insufficient basis on which to rest a guilty verdict.8 See\n\n\n\n8 In one transaction, Pauling tells a buyer, ʺI only got 10 grams here.ʺ Appʹx at 199.\nIt might be said that ʺonly . . . 10 gramsʺ contrasts with, rather than reflects, a ʺnice\namount,ʺ thus enabling the inference that a ʺnice amountʺ is something more than 10\ngrams of heroin. But considered in context, no such inference is possible. Pauling told\nthe purchaser that he ʺonlyʺ had 10 grams because he did not have enough heroin to fill\nthe buyerʹs 20‐gram order. See Trial Tr. at 123:21‐23 (ʺ[H]e didnʹt have enough. He\ndidnʹt have what I ordered. I ordered 20, and he didnʹt have enough grams of heroin to\ngive me. He only had ten . . . grams.ʺ).\n 24\n\fLangston, 630 F.3d at 314; see also OʹLaughlin, 568 F.3d at 302 (ʺThe instant facts\n\nmay support a reasonable speculation that OʹLaughlin was the assailant, but not\n\nsufficient evidence to establish his guilt. Taken together, the circumstantial\n\nevidence in this case, even when drawing all reasonable inferences in favor of the\n\nprosecution, does not permit any rational jury to conclude that OʹLaughlin was\n\nthe assailant beyond a reasonable doubt.ʺ); Newman, 543 F.3d at 796‐97\n\n(ʺAlthough circumstantial evidence alone can support a conviction, there are\n\ntimes that it amounts to only a reasonable speculation and not to sufficient\n\nevidence. . . . [W]here the evidence taken in the light most favorable to the\n\nprosecution creates only a reasonable speculation that [an element of the crime is\n\nmet], there is insufficient evidence to satisfy the Jackson standard.ʺ). Because of\n\nthe lack of representative proof of the quantity represented by a ʺniceʺ amount,\n\nthe instant case is more like Martinez and Shonubi II than Adames.\n\n And even assuming it was reasonable for the jury to infer that\n\nPauling and Low conspired to distribute an additional 11 or more grams of\n\nheroin, ʺ[w]e must also be satisfied that the inferences are sufficiently supported\n\nto permit a rational juror to find that the [quantity] element . . . is established\n\nbeyond a reasonable doubt.ʺ Martinez, 54 F.3d at 1043. In this case, we are not\n\n\n\n 25\n\fsatisfied that the proof adduced by the government at trial could permit any\n\nrational trier of fact to conclude, beyond a reasonable doubt, that Pauling and\n\nLow conspired to distribute an additional 11 grams of heroin. See Jackson, 443\n\nU.S. at 320 (ʺ[I]t could not seriously be argued that such a ʹmodicumʹ of evidence\n\ncould by itself rationally support a conviction beyond a reasonable doubt.ʺ).\n\nAccordingly, the district court correctly determined that there was insufficient\n\nevidence to support the juryʹs finding that Pauling and Low conspired to\n\ndistribute 100 grams or more of heroin and, thus, properly granted Paulingʹs\n\nRule 29 motion.\n\n Our conclusion is supported by decisions of other courts. Many of\n\nour sister circuits have reversed convictions where proof of drug quantity was\n\nspeculative on facts analogous to these. See United States v. Navarette‐Aguilar, 813\n\nF.3d 785, 793, 796 (9th Cir. 2015) (rejecting governmentʹs argument that ʺpatternʺ\n\nof drug dealing between conspirators ʺallowed the jury to infer a preexisting\n\nagreement to distributeʺ 250 additional grams of heroin because ʺit would be\n\nspeculative to infer that the defendants agreed to any future transactions such\n\nthat they would reach the one kilogram markʺ); United States v. Daniels, 723 F.3d\n\n562, 571 (5th Cir. 2013) (rejecting governmentʹs argument that distribution of five\n\n\n\n 26\n\fkilograms of cocaine was inferable from evidence of distribution of roughly 1.5\n\nkilograms of cocaine to one buyer, combined with evidence of sales to six other\n\nbuyers, because, ʺwithout more evidence as to the quantity of these other sales,ʺ\n\nfinding of five kilograms was mere speculation); United States v. Hickman, 626\n\nF.3d 756, 768‐70 (4th Cir. 2010) (rejecting governmentʹs argument that the four‐\n\nmonth course of conduct between supplier and distributor was ʺpart of\n\nsomething largerʺ such that jury could infer an additional 174 grams of heroin\n\nbecause it would be based on a ʺhunch or intuition,ʺ and jury cannot ʺsimply\n\nguess at the magnitude or frequency of unknown criminal activityʺ (internal\n\nquotation marks omitted)).\n\n To the extent the government separately argues that the substantial\n\ninteractions between Pauling and Low proved that additional quantities\n\ndistributed by Low were reasonably foreseeable to Pauling, we agree that such\n\nan inference would be reasonable. But even so, based on the evidence here, no\n\njury could reasonably conclude that any specific quantity of heroin was\n\nattributable to Low, beyond the undisputed 89 grams. The fact that Lowʹs\n\noperation involved a stash house and a worker, and that Pauling was aware of\n\nthese facts, is simply not specific evidence of drug quantity. In the absence of\n\n\n\n 27\n\fany evidence indicating the quantities generally (or specifically) associated with\n\nLowʹs operation, quantity is not inferable. There is, therefore, no additional\n\nquantity attributable to Low that Pauling could fairly be said to have reasonably\n\nforeseen.\n\n * * *\n\n Although this is a close case that tests the boundary that exists\n\nbetween the drawing of a permissible inference and impermissible speculation,\n\nonly surmise and guesswork could lead a jury to determine that Pauling and\n\nLow conspired to distribute an additional 11 grams of heroin. ʺWe are obliged to\n\nview the evidence with all reasonable inferences drawn in the Governmentʹs\n\nfavor, but we may not permit that rule to displace the even more important rule\n\nthat all elements of an offense must be proven beyond a reasonable doubt.ʺ\n\nMartinez, 54 F.3d at 1049 (Newman, J., dissenting). While one could argue, based\n\non reasonable speculation, that it was ʺlikelyʺ or ʺprobableʺ that Low and Pauling\n\nagreed to distribute an additional 11 grams of heroin, the government had to\n\nprove more than likelihood or probability ‐‐ it had to prove an agreement to\n\ndistribute (or possess with intent to distribute) an additional 11 or more grams of\n\nheroin beyond a reasonable doubt. See Lorenzo, 534 F.3d at 159 (noting that ʺit\n\n\n\n 28\n\fwould not satisfy the Constitution to have a jury determine that the defendant is\n\nprobably guiltyʺ (internal quotation marks and alternations omitted)).\n\n Because the government failed to do so, the district court correctly\n\ndetermined, viewing all of the evidence in the light most favorable to the\n\ngovernment and crediting every inference in its favor, that the evidence at trial\n\nwas insufficient to support a jury finding that 100 or more grams of heroin were\n\nattributable to the Pauling‐Low conspiracy.\n\n CONCLUSION\n\n For the reasons set forth above, the judgment of the district court is\n\nAFFIRMED. The case is REMANDED for sentencing.\n\n\n\n\n 29\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellant, v. John PAULING, A/K/A JJ, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2539‐cr\\nUnited States v. Pauling\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n August Term 2018\\n\\n (Argued: October 23, 2018 Decided: May 23, 2019)\\n\\n Docket No. 17‐2539‐cr\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellant,\\n\\n v.\\n\\n JOHN PAULING, A/K/A JJ,\\n\\n Defendant‐Appellee.\\n\\n\\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE SOUTHERN DISTRICT OF NEW YORK\\n\\n\\nBefore:\\n KATZMANN, Chief Judge, and KEARSE and CHIN, Circuit Judges.\\n\\n\\n\\n Appeal by the government from an opinion and order of the United\\n\\nStates District Court for the Southern District of New York (Oetken, J.) granting\\n\\ndefendant‐appelleeʹs motion to vacate a portion of the juryʹs guilty verdict. After\\n\\fa four‐day trial, the jury convicted defendant‐appellee of conspiracy to distribute\\n\\n100 grams or more of heroin as well as several other narcotics and firearms\\n\\nviolations. Defendant‐appellee moved to vacate the juryʹs verdict on the\\n\\nconspiracy count, on the basis that the evidence at trial was insufficient to\\n\\nestablish the quantity element of the crime. The district court granted the\\n\\nmotion, vacated the juryʹs finding as to quantity, and entered a verdict of guilty\\n\\nto a lesser included offense. The government appeals, arguing that it introduced\\n\\nevidence sufficient to prove quantity and that therefore the juryʹs verdict should\\n\\nbe reinstated.\\n\\n AFFIRMED and REMANDED for sentencing.\\n\\n\\n JASON M. SWERGOLD, Assistant United States Attorney\\n (Amanda L. Houle, Micah W.J. Smith, Assistant\\n United States Attorneys, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, New\\n York, for Appellant.\\n\\n YUANCHUNG LEE, Federal Defenders of New York, Inc.,\\n New York, New York, for Defendant‐Appellee.\\n ___________\\n\\nCHIN, Circuit Judge:\\n\\n In this case, a jury convicted defendant‐appellee John Pauling of\\n\\nconspiring to distribute or possess with the intent to distribute 100 grams or\\n\\n 2\\n\\fmore of heroin. The parties agree that the government was required to prove\\n\\nthat the heroin in question was the subject of a conspiracy between Pauling and\\n\\none of his suppliers, referred to as ʺLowʺ (the ʺPauling‐Low conspiracyʺ), and\\n\\nthat the government proved beyond a reasonable doubt that 89 grams of heroin\\n\\nwere attributable to the Pauling‐Low conspiracy. The parties disagree, however,\\n\\nas to whether the government proved that the Pauling‐Low conspiracy involved\\n\\nthe additional 11 grams of heroin necessary to reach the 100‐gram threshold.\\n\\n The district court granted Paulingʹs motion pursuant to Federal Rule\\n\\nof Criminal Procedure 29 to set aside his conviction on the conspiracy count on\\n\\nthe ground that the evidence introduced at trial failed to establish that an\\n\\nadditional 11 grams of heroin were attributable to the Pauling‐Low conspiracy.\\n\\nInstead of entering judgment convicting Pauling of violating 21 U.S.C.\\n\\n§§ 841(a)(1), 841(b)(1)(B) and 846, it entered judgment finding Pauling guilty of a\\n\\nlesser included offense, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.\\n\\nThe former offense carries a five‐year mandatory sentence for violations\\n\\ninvolving 100 grams or more of heroin, while the latter offense carries no\\n\\n\\n\\n\\n 3\\n\\fmandatory minimum and contains no quantity element.1 The government\\n\\nappeals.\\n\\n We conclude that the evidence at trial was insufficient to permit a\\n\\nreasonable jury to find beyond a reasonable doubt that the Pauling‐Low\\n\\nconspiracy involved an additional 11 grams of heroin. Accordingly, we affirm\\n\\nand remand for sentencing.\\n\\n BACKGROUND\\n\\nA. Factual Background2\\n\\n Between May 25 and July 14, 2016, the Drug Enforcement\\n\\nAdministration (ʺDEAʺ) intercepted phone calls between Pauling and various\\n\\nassociates, including an individual named ʺLow.ʺ On July 14, Pauling was\\n\\narrested by authorities. Upon his arrest, agents seized from Paulingʹs apartment\\n\\napproximately 600 glassine bags, a digital scale, materials that could be used as a\\n\\n\\n\\n\\n1 See United States v. Facen, 812 F.3d 280, 283 n.1 (2d Cir. 2016) (noting that a\\njudgment of conviction under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) is ʺin effect a\\nlesser‐included offenseʺ of 21 U.S.C. § 841(b)(1)(B) ʺwithout a mandatory minimum\\nsentenceʺ).\\n2 Our statement of facts views the evidence in the light most favorable to the\\ngovernment, crediting any inference that the jury might have drawn in its favor. See\\nUnited States v. Rosemond, 841 F.3d 95, 99‐100 (2d Cir. 2016).\\n 4\\n\\fcutting agent, and other paraphernalia associated with the distribution of\\n\\ncontrolled substances.\\n\\n Pauling concedes that the government established at trial that he\\n\\nand Low conspired to distribute 89 grams of heroin. This was shown through\\n\\nwiretap evidence of four transactions. On June 26, 2016, Pauling purchased 30\\n\\ngrams of heroin from Low for resale to a customer named ʺFlow.ʺ On June 27,\\n\\nPauling combined 10 grams of heroin he received from Low with 20 grams of a\\n\\ncutting agent, for a total of 30 grams of heroin. On July 3, Pauling requested 14\\n\\ngrams of heroin from Low for a customer named ʺSteve.ʺ Finally, on July 11,\\n\\nLow supplied Pauling with 11 grams of heroin, again for Steve, which Pauling\\n\\ncut for a total of 15 grams. The four transactions thus involved a total of 89\\n\\ngrams of heroin.3\\n\\n The conversation between Pauling and Steve about the July 3\\n\\ntransaction is at issue in this appeal. At 1:16 p.m. that day, Pauling spoke to\\n\\nSteve about the quantity of heroin Steve wanted to order:\\n\\n\\n\\n\\n3 Pauling concedes that the quantity of the heroin in question is the weight with\\nthe cutting agent included. See 21 U.S.C. § 841(b)(1)(B)(i) (providing penalties for the\\ndistribution or possession with intent to distribute ʺ100 grams or more of a mixture or\\nsubstance containing a detectable amount of heroinʺ). The record indicates that at the\\ntime of the conspiracy, a gram of heroin sold for approximately $65.\\n 5\\n\\f PAULING: [T]ell me, the count, thatʹs, you know,\\n tomorrow.\\n STEVE: Iʹll meet you on, hold on one second. Iʹm on 17, as a\\n matter of fact, same thing as last time, same thing [as] last\\n time.\\n PAULING: Where was it? I forgot, shit because there was\\n so many people.\\n STEVE: Hold on, right, right. Iʹma go to, uh, 14th floor.\\n\\nAppʹx at 122. The parties agree that the floor number was code for drug\\n\\nquantity, in grams. Approximately three hours later, at 4:04 p.m., Pauling called\\n\\nLow:\\n\\n PAULING: Yo um, how we gonna do this cause my man\\n wants four‐fourteen right and he be down tomorrow and I\\n got some other people who want ‐‐\\n LOW: 14?\\n PAULING: Huh?\\n LOW: You said 14?\\n PAULING: Yeah, and I got these other people that want a\\n gram‐, two grams shit like that.\\n\\nId. at 124. There is no dispute that the July 3 calls account for 14 grams of heroin\\n\\nattributable to the Pauling‐Low conspiracy, and this amount is included in the 89\\n\\ngrams discussed above. The parties disagree, however, about whether Steveʹs\\n\\nreference to ʺsame thing as last timeʺ during the 1:16 p.m. call referred to a prior\\n\\n14‐gram transaction of heroin supplied by Low. The government argues that it\\n\\ndid and that the total quantity of heroin attributable to the Pauling‐Low\\n\\n\\n 6\\n\\fconspiracy was therefore 103 grams ‐‐ just over the 100‐gram threshold required\\n\\nfor the conspiracy count.\\n\\n The wiretaps also provided information about the relationship\\n\\nbetween Pauling and Low. Pauling owed Low money. Pauling was aware that\\n\\nLow had a stash house for his narcotics, and he was aware that Lowʹs associate\\n\\nʺPlayʺ worked at the stash house. Pauling and Low discussed prices. On more\\n\\nthan one occasion, they discussed in detail the process of cutting narcotics and\\n\\nthe benefits of certain cutting agents.4 Pauling also indicated on several\\n\\noccasions that he would help sell Lowʹs product.5 The government argues that\\n\\n\\n\\n4 Appʹx at 114 (PAULING: ʺIʹm mixing this shit right now. . . . Iʹm squeezing it in\\nmy hand . . . . I ainʹt gonna put it in no press. . . . I told you I put the strainer, right?\\nAnd then [unintelligible] I had to take a hammer and break it with a hammer, cut it\\nsmall and then I mashed it up . . . .ʺ); id. at 124‐25 (PAULING: ʺIʹma bring the machine\\nso we could press it all. . . . [Y]ou donʹt wanna smash it up? I mean you donʹt want to\\npress it? LOW: Yeah. Iʹve been wanted to do that all the week, nigga. Iʹve been calling\\nyou man. . . . PAULING: Aight, so we can do it tomorrow then.ʺ); id. at 144‐45\\n(PAULING: ʺThey love it. Donʹt touch it. They love it. . . . [I]f we didnʹt have that\\nwhat we did last night, it would be too sticky . . . . And it was like all gooey. . . . [T]he\\nonly thing that gets it like that is what we did last night. . . . Thatʹs what makes it better.\\n. . . And what I want to, right? Is . . . lie it out and, um, dry it out all the, the sweetness.\\n. . . [D]onʹt get no mix from nowhere else, just use that.ʺ).\\n5 Appʹx at 130 (PAULING: ʺIʹll help you get rid of that shit . . . this week.\\n[T]omorrow that shit will be gone.ʺ); id. at 116 (PAULING: ʺ[T]he queens thing is good.\\n. . . [I]tʹs already established.ʺ); id. at 124 (PAULING: ʺI got some other people who\\nwant . . . a gram‐, two grams shit like that.ʺ); id. at 145‐46 (PAULING: ʺIʹm a move it off\\nfor you. . . . Iʹm spend it with you anyway. . . . Iʹm a get rid of all that.ʺ); id. (LOW:\\nʺ[W]e got a nice amount of that shit left, too. . . . PAULING: I got you, I, Iʹm a be hittinʹ\\nyou . . . when, um, dude calls me.ʺ).\\n 7\\n\\fthis evidence proved circumstantially that Pauling and Low conspired to\\n\\ndistribute at least another 11 grams of heroin beyond the 89 grams discussed\\n\\nabove.\\n\\n B. Procedural History\\n\\n On July 14, 2016, the DEA arrested Pauling for his alleged\\n\\ninvolvement with guns and drugs in the New York City area. The government\\n\\nindicted Pauling on August 18, 2016, on five counts. The government filed a\\n\\nsuperseding indictment on January 19, 2017, charging Pauling with eight counts:\\n\\n(a) conspiring to distribute and to possess with intent to distribute 100 grams or\\n\\nmore of mixtures containing heroin, in violation of 21 U.S.C. §§ 841(a)(1),\\n\\n841(b)(1)(B), and 846 (ʺCount Oneʺ); (b) three counts of distributing and\\n\\npossessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812,\\n\\n841(a)(1), and 841(b)(1)(C); (c) one count of firearms trafficking, in violation of 18\\n\\nU.S.C. § 922(a)(1)(A) and (a)(2); (d) one count of using, carrying, or possessing a\\n\\nfirearm in connection with the heroin distribution conspiracy charged in Count\\n\\nOne, in violation of 18 U.S.C. § 924(c) (ʺCount Sixʺ); and (e) two counts of\\n\\npossessing a firearm after sustaining a felony conviction, in violation of 18 U.S.C.\\n\\n§ 922(g)(1).\\n\\n\\n\\n 8\\n\\f Trial began on February 13, 2017. At the close of the governmentʹs\\n\\ncase‐in‐chief on February 15, Pauling moved for a judgment of acquittal as to\\n\\nCount One under Federal Rule of Criminal Procedure 29, citing insufficient\\n\\nevidence to sustain a conviction. The court reserved decision. On February 16,\\n\\nPauling conceded in his closing argument that he was guilty of all counts except\\n\\nfor Counts One and Six. The jury returned its verdict later that day, finding\\n\\nPauling guilty of all but Count Six.\\n\\n On March 24, 2017, Pauling renewed his motion under Rule 29 to\\n\\nvacate and set aside the portion of the juryʹs verdict on Count One finding that at\\n\\nleast 100 grams of heroin were attributable to the Pauling‐Low conspiracy.\\n\\nPauling moved in the alternative for a new trial pursuant to Rule 33 as to that\\n\\ncount. He argued that the July 3 call could not support a jury finding of 28\\n\\ngrams by including the alleged prior 14‐gram transaction and that the 100‐gram\\n\\nthreshold was not otherwise proven beyond a reasonable doubt. The\\n\\ngovernment opposed both motions, arguing that the jury could have reasonably\\n\\ninferred from the July 3 call that the ʺsame thing as last timeʺ referred to an\\n\\nearlier transaction in which Pauling sold Steve 14 grams of heroin sourced from\\n\\nLow. It argued that this prior 14‐gram transaction should be included, thus\\n\\n\\n\\n 9\\n\\fbringing the total quantity attributable to the Pauling‐Low conspiracy to 103\\n\\ngrams. It argued alternatively that the jury could reasonably infer from the\\n\\nʺclose working relationshipʺ between Pauling and Low that their conspiracy\\n\\nextended ʺwell beyondʺ 100 grams. Appʹx at 216‐17.\\n\\n On June 12, 2017, the district court granted Paulingʹs motion to\\n\\nvacate and set aside his conviction on Count One and entered a verdict of guilty\\n\\nto a lesser included offense. The district court also conditionally granted\\n\\nPaulingʹs motion for a new trial, pending the outcome of this appeal. Paulingʹs\\n\\nsentencing, scheduled for September 13, 2017, was stayed pending this appeal.\\n\\n DISCUSSION\\n\\n Pauling does not challenge the juryʹs finding that he participated in\\n\\na conspiracy with Low to distribute heroin. Nor does he dispute that the\\n\\nevidence established that he directly participated with Low in the distribution of\\n\\n89 grams of heroin. We are therefore presented with a single, discrete question:\\n\\nWhether the government presented evidence sufficient for the jury to find\\n\\nbeyond a reasonable doubt that an additional 11 grams or more of heroin was\\n\\nattributable to the Pauling‐Low conspiracy. The government argues that it did\\n\\n\\n\\n\\n 10\\n\\fso, relying first on the July 3 telephone call and second on the evidence of an\\n\\nongoing relationship between Pauling and Low.\\n\\nI. Applicable Law\\n\\n The quantity of drugs involved in a violation of § 841(b)(1)(B) is an\\n\\nelement of the charged offense, see United States v. Gonzalez, 420 F.3d 111, 131 (2d\\n\\nCir. 2005), and the government has the burden of proving the charged quantity\\n\\nbeyond a reasonable doubt, id. at 120. The quantity element is met only if ʺa\\n\\nsingle conspiracy,ʺ rather than ʺseparate agreements [that] may have been\\n\\ncharged under the umbrella of a single conspiracy count,ʺ crosses the quantity\\n\\nthreshold. United States v. Barnes, 158 F.3d 662, 670‐71 (2d Cir. 1998). Thus, while\\n\\nthe evidence at trial established that Pauling conspired to distribute over 200\\n\\ngrams of heroin with various individuals, see Appʹx at 202, it was the\\n\\ngovernmentʹs burden with respect to Count One to prove that 100 or more of\\n\\nthose grams were attributable to a single conspiracy ‐‐ the Pauling‐Low\\n\\nconspiracy.\\n\\n Due process requires that essential elements of a crime be proven\\n\\nbeyond a reasonable doubt to ensure that ʺno person shall be made to suffer the\\n\\nonus of a criminal conviction except upon sufficient proof.ʺ Jackson v. Virginia,\\n\\n\\n\\n 11\\n\\f443 U.S. 307, 316 (1979); see also In re Winship, 397 U.S. 358, 364 (1970). Rule 29 of\\n\\nthe Federal Rules of Criminal Procure is one means of protecting this\\n\\nconstitutional right; it enables the district court to vacate a conviction if it\\n\\nconcludes that ʺno rational trier of fact could find guilt beyond a reasonable\\n\\ndoubt.ʺ Jackson, 443 U.S. at 317; see also United States v. Coplan, 703 F.3d 46, 62 (2d\\n\\nCir. 2012) (ʺ[W]e will uphold the judgment[] of conviction if ʹany rational trier of\\n\\nfact could have found the essential elements of the crime beyond a reasonable\\n\\ndoubt.ʹʺ (quoting Jackson, 443 U.S. at 319)). We review de novo a district courtʹs\\n\\ngrant of a Rule 29 motion based on a finding that the trial evidence was\\n\\ninsufficient to support the juryʹs verdict, applying the same standard the district\\n\\ncourt applies in review of the evidence. United States v. Truman, 688 F.3d 129, 139\\n\\n(2d Cir. 2012).\\n\\n A defendant challenging a juryʹs guilty verdict ʺbears a heavy\\n\\nburden.ʺ United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (internal\\n\\nquotation marks omitted). This is because, ʺ[i]n evaluating a sufficiency\\n\\nchallenge, we ʹmust view the evidence in the light most favorable to the\\n\\ngovernment, crediting every inference that could have been drawn in the\\n\\ngovernment’s favor, and deferring to the jury’s assessment of witness credibility\\n\\n\\n\\n 12\\n\\fand its assessment of the weight of the evidence.ʹʺ Id. (quoting Coplan, 703 F.3d\\n\\nat 62). This deferential standard of review is ʺespecially important when\\n\\nreviewing a conviction of conspiracy . . . because a conspiracy by its very nature\\n\\nis a secretive operation, and it is a rare case where all aspects of a conspiracy can\\n\\nbe laid bare in court with the precision of a surgeonʹs scalpel.ʺ United States v.\\n\\nPitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks omitted).\\n\\n ʺAn inference is not a suspicion or a guess. It is a reasoned, logical\\n\\ndecision to conclude that a disputed fact exists on the basis of another fact that is\\n\\nknown to exist.ʺ Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (alterations\\n\\nomitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)).\\n\\nImpermissible speculation, on the other hand, is ʺa complete absence of\\n\\nprobative facts to support the conclusion reached.ʺ Lavendar v. Kurn, 327 U.S.\\n\\n645, 653 (1946). While we must defer to a juryʹs reasonable inferences, we give\\n\\nno deference to impermissible speculation. United States v. DʹAmato, 39 F.3d\\n\\n1249, 1256 (2d Cir. 1994).\\n\\n The line between permissible inference and impermissible\\n\\nspeculation ʺis drawn by the laws of logicʺ and not ʺjudicial idiosyncrasies.ʺ Tose\\n\\nv. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir. 1981), abrogated on other grounds\\n\\n\\n\\n 13\\n\\fby Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). As the Supreme\\n\\nCourt has instructed, ʺthe essential requirement is that mere speculation be not\\n\\nallowed to do duty for probative facts, after making due allowance for all\\n\\nreasonably possible inferences favoring the party whose case is attacked.ʺ\\n\\nGalloway v. United States, 319 U.S. 372, 395 (1943). Thus, in a criminal case, ʺthe\\n\\ngovernment must do more than introduce evidence ʹat least as consistent with\\n\\ninnocence as with guilt.ʹʺ DʹAmato, 39 F.3d at 1256 (quoting United States v.\\n\\nMulheren, 938 F.2d 364, 372 (2d Cir. 1991)).\\n\\n At times it may be difficult to distinguish between inference and\\n\\nspeculation, as some speculation may indeed be reasonable. Reasonable\\n\\nspeculation occurs when the finder of fact concludes that a disputed fact exists\\n\\nthat is within the realm of possibility, but the conclusion reached is nevertheless\\n\\nunreasonable because it is not logically based on another fact known to exist. See\\n\\nLangston v. Smith, 630 F.3d 310, 314, 319 (2d Cir. 2011) (noting distinction between\\n\\nʺreasonable speculationʺ and ʺsufficient evidenceʺ); Leonard B. Sand et al.,\\n\\nModern Federal Jury Instructions § 6.01 (2011) (ʺThe process of drawing\\n\\ninferences from facts in evidence is not a matter of guesswork or speculation. An\\n\\ninference is a deduction or conclusion which . . . the jury [is] permitted to draw\\n\\n\\n\\n 14\\n\\f. . . from facts which have been established by either direct or circumstantial\\n\\nevidence.ʺ); see also OʹLaughlin v. OʹBrien, 568 F.3d 287, 301‐02 (1st Cir. 2009);\\n\\nNewman v. Metrish, 543 F.3d 793, 796‐97 (6th Cir. 2008). Indeed, we ʺmay not\\n\\ncredit inferences within the realm of possibility when those inferences are\\n\\nunreasonable.ʺ United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006).\\n\\n ʺ[W]here a fact to be proved is also an element of the offense ‐‐ here,\\n\\n[drug quantity] ‐‐ it is not enough that the inferences in the governmentʹs favor\\n\\nare permissible. We must also be satisfied that the inferences are sufficiently\\n\\nsupported to permit a rational juror to find that the element, like all elements, is\\n\\nestablished beyond a reasonable doubt.ʺ United States v. Martinez, 54 F.3d 1040,\\n\\n1043 (2d Cir. 1995); see also Sand et al., supra, § 6.01 (ʺ[W]hether based upon direct\\n\\nor circumstantial evidence, or upon logical, reasonable inferences drawn from\\n\\nsuch evidence, [the jury] must be satisfied of the guilt of the defendant beyond a\\n\\nreasonable doubt before [it] may convict.ʺ). ʺ[I]t would not satisfy the\\n\\nConstitution to have a jury determine that the defendant is probably guilty.ʺ\\n\\nUnited States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks\\n\\nand alternations omitted).\\n\\n\\n\\n\\n 15\\n\\f The drug quantity attributable to a defendant knowingly\\n\\nparticipating in a drug distribution conspiracy includes (1) transactions in which\\n\\nhe participated directly, (2) transactions in which he did not personally\\n\\nparticipate, but where he knew of the transactions or they were reasonably\\n\\nforeseeable to him, and (3) quantities he agreed to distribute or possess with\\n\\nintent to distribute ʺregardless of whether he ultimately committed the\\n\\nsubstantive act.ʺ United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).6\\n\\n To prove the quantity by one of these means beyond a reasonable\\n\\ndoubt, the government must introduce specific evidence of drug quantities, or\\n\\nevidence from which quantity can, through inference, be logically approximated\\n\\nor extrapolated. See United States v. Archer, 671 F.3d 149, 163 (2d Cir. 2011)\\n\\n(requiring ʺspecific evidenceʺ of quantity to sustain quantity‐based\\n\\nenhancement). In the absence of such evidence, a juryʹs finding as to drug\\n\\nquantity is nothing but ʺsurmise and conjecture.ʺ United States v. Shonubi, 998\\n\\nF.2d 84, 90 (2d Cir. 1993). Compare United States v. Shonubi (ʺShonubi IIʺ), 103 F.3d\\n\\n1085, 1092 (2d Cir. 1997) (approving of method of testing four randomly selected\\n\\nheroin balloons to estimate quantity of heroin contained in 103 balloons found\\n\\n\\n\\n\\n6 The district court correctly charged the jury on this law. Trial Tr. at 573‐74.\\n 16\\n\\finside defendantʹs body), with id. (disapproving of extrapolation from quantity of\\n\\neighth trip that each of seven prior trips contained the same quantity). Thus,\\n\\nwhile quantities of controlled substances in a drug distribution conspiracy\\n\\nprosecution may be determined through extrapolation, approximation, or\\n\\ndeduction, there ordinarily must be evidence of known quantities, which are\\n\\nsufficiently representative of the unknown quantities and from which an\\n\\napproximation of the unknown quantities can logically be derived. See Archer,\\n\\n671 F.3d at 163.\\n\\n Two of our decisions, though summary orders, provide a framework\\n\\nfor understanding the role of representative proof in proving drug quantity. In\\n\\nUnited States v. Adames, the defendant was convicted at trial of conspiracy to\\n\\ndistribute five or more kilograms of cocaine, and he challenged the sufficiency of\\n\\nthe evidence of quantity. 727 F. Appʹx 12 (2d Cir. 2018) (summary order). The\\n\\ngovernment introduced evidence linking the defendant to four seized packages.\\n\\nId. at 13. The seized packages contained one kilogram, 530 grams, two\\n\\nkilograms, and 406 grams of cocaine, respectively, Governmentʹs Brief at 5‐9,\\n\\nAdames, 727 F. Appʹx 12 (2d Cir. 2018) (No. 17‐1254) (describing packages 1, 4, 5,\\n\\nand 9), for a total of 3.936 kilograms, Adames, 727 F. Appʹx at 13. Other evidence\\n\\n\\n\\n 17\\n\\flinked the defendant to five additional packages of unknown quantity, which the\\n\\ngovernment was unable to seize. Id. But one of these unseized packages\\n\\n(package 6) was tracked online from an IP address associated with the\\n\\ndefendantʹs home and weighed approximately the same as a seized package\\n\\n(package 5) that contained two kilograms of cocaine. Governmentʹs Brief, supra,\\n\\nat 8‐9. Moreover, package 6 was briefly examined before delivery, and trial\\n\\ntestimony indicated that it contained ʺbrick shapedʺ objects. Id. In addition,\\n\\nalthough the other unseized packages apparently were never weighed, ʺphone\\n\\nrecords, witness testimony, and other circumstantial evidence establish[ed] that\\n\\nthese too were parcels of cocaine.ʺ Adames, 727 F. Appʹx at 13. In light of all the\\n\\ncircumstances, we held that ʺthe Government presented sufficient evidence for a\\n\\nreasonable jury to infer the existence of an additional 1.06 kilograms from the\\n\\naggregate of the additional unseized packages.ʺ Id. at 14.\\n\\n In United States v. Martinez, the defendant challenged a drug‐\\n\\nquantity enhancement at sentencing. 133 F. Appʹx 762 (2d Cir. 2005) (summary\\n\\norder).7 It was undisputed that the defendant was responsible for helping to\\n\\n\\n\\n7 The proof necessary to satisfy an element of a charged crime beyond a reasonable\\ndoubt is obviously more stringent than the proof required to establish that a sentencing\\nenhancement is warranted by the preponderance of the evidence. See generally United\\nStates v. Booker, 543 U.S. 220 (2005).\\n 18\\n\\fbuild nine vehicle ʺtrapsʺ in three cars used to hide packages of cocaine. Id. at\\n\\n763‐64. The government seized cocaine in one of those traps, which contained 16\\n\\nkilograms, and evidence showed that the defendant carried 19 kilograms from\\n\\nanother vehicle. Id. at 765. A trial witness testified that he saw the defendant\\n\\ncarrying another 20 kilograms of cocaine. Id. The district court concluded that\\n\\nthe defendant was responsible for over 150 kilograms ʺby averaging the three\\n\\nknown quantities attributable to [the defendant] ‐‐ 16, 19, and 20 kilograms ‐‐ and\\n\\nmultiplying by nine, the number of traps [defendant] built.ʺ Id. We vacated the\\n\\ndrug‐quantity enhancement, noting that ʺ[t]he average quantity of cocaine seized\\n\\nor unloaded from the three cars is not ʹspecific evidenceʹ of the quantity of\\n\\ncocaine actually transported in the nine traps built by [the defendant]ʺ because ʺit\\n\\nis quite possible that the traps were used to transport some other contrabandʺ\\n\\nand the evidence relied upon was not sufficiently reliable. Id.\\n\\n Adames and Martinez illustrate how the total drug quantity\\n\\nattributable to a defendant can (and cannot) be inferred or extrapolated from\\n\\nknown quantities. In Adames, it was reasonable to infer from evidence of four\\n\\nseized packages, each containing a range of from 406 grams to two kilograms of\\n\\ncocaine, that a total of at least an additional 1.06 kilograms of cocaine was\\n\\n\\n\\n 19\\n\\fcontained in five unseized packages, one of which was known to have a similar\\n\\nweight to a seized package containing two kilograms of cocaine. The seized\\n\\npackages were sufficiently representative of the unseized packages to support\\n\\nthe inference that the unseized packages contained enough cocaine to reach the\\n\\nquantity threshold. By contrast, in Martinez, it was not reasonable to infer from\\n\\nevidence of two vehicle traps containing 16 and 19 kilograms of cocaine and\\n\\ntestimony that the defendant carried a package of approximately 20 kilograms of\\n\\ncocaine that each of nine traps in three different cars contained the average of the\\n\\nthree known quantities. The seized packages were not sufficiently representative\\n\\nof the unseized packages to support the inference that the seized and unseized\\n\\npackages contained a similar quantity of cocaine. A similar lack of\\n\\nrepresentativeness arose in Shonubi II, in which we rejected the inference that\\n\\neach of seven prior trips contained the same quantity of drugs as was seized in\\n\\nthe eighth trip. 103 F.3d at 1092.\\n\\nII. Application\\n\\n The government argues that it presented evidence sufficient for the\\n\\njury to find beyond a reasonable doubt that an additional 11 grams or more of\\n\\nheroin was attributable to the Pauling‐Low conspiracy. It relies first on the July 3\\n\\n\\n\\n 20\\n\\ftelephone call and second on the evidence of an ongoing relationship between\\n\\nPauling and Low. We discuss each in turn.\\n\\n 1. The July 3 Phone Call\\n\\n The government argues that the evidence permitted the jury to infer\\n\\nthat an additional 14 grams of heroin was attributable to the Pauling‐Low\\n\\nconspiracy by virtue of the July 3 phone call, in which the buyer mentioned that\\n\\nhe wanted the ʺsame thing as last timeʺ while placing an order for 14 grams of\\n\\nheroin. Appʹx at 122. While we agree that the words ʺsame thing as last timeʺ\\n\\ncould have been a reference to a prior 14‐gram sale of heroin by Pauling to Steve,\\n\\nwe hold that no reasonable jury could have found beyond a reasonable doubt\\n\\nthat those 14 grams were sourced by Low. See Piaskowski v. Bett, 256 F.3d 687, 693\\n\\n(7th Cir. 2001) (ʺAlthough a jury may infer facts from other facts that are\\n\\nestablished by inference, each link in the chain of inferences must be sufficiently\\n\\nstrong to avoid a lapse into speculation.ʺ).\\n\\n On the present record, the jury could not rationally conclude beyond\\n\\na reasonable doubt that a specific yet temporally unknown transaction, the\\n\\nexistence of which is evidenced solely by five words ‐‐ which were not uttered by\\n\\neither Pauling or Low ‐‐ involved heroin provided by Low. The jury did not hear\\n\\n\\n\\n 21\\n\\fevidence as to who provided the heroin in this prior transaction, when the\\n\\ntransaction occurred, or what the circumstances were. To conclude so much on\\n\\nthe basis of so little amounts to impermissible speculation. Indeed, trial\\n\\ntestimony and wiretap evidence established that Pauling had other suppliers,\\n\\nany one of whom could have supplied the heroin for that prior transaction. See\\n\\nTrial Tr. at 175, 183; Appʹx at 83‐84, 88, 98, 100, 103, 127. And while the\\n\\ngovernment introduced evidence that Pauling distributed over 200 grams of\\n\\nheroin, Appʹx at 202, it did not show that as much as half of that heroin was\\n\\nsupplied by Low. Accordingly, without something more, the jury could not\\n\\nreasonably have concluded beyond a reasonable doubt that the words ʺsame\\n\\nthing as last timeʺ referred to an additional 14 grams of heroin supplied by Low.\\n\\n 2. The Ongoing Relationship\\n\\n The government argues that even if the July 3 phone call did not\\n\\nprove that Pauling purchased an additional 14 grams of heroin from Low, it\\n\\nwould have been rational for the jury to conclude, based on the evidence of their\\n\\nongoing relationship, that Pauling and Low conspired to distribute at least an\\n\\nadditional 11 grams of heroin. Proof of drug quantity may be established\\n\\nthrough proof of an agreement to distribute or possess with intent to distribute,\\n\\n\\n\\n 22\\n\\fregardless of whether the substantive act was actually completed. See Jackson,\\n\\n335 F.3d at 181. The government asserts that there is ʺconcrete evidence of\\n\\nPaulingʹs specific plans to continue to fill large orders through Low, which were\\n\\ndisrupted by Paulingʹs arrest,ʺ and that the jury could reasonably have inferred\\n\\nthat this agreement contemplated 11 or more grams of heroin. Governmentʹs Br.\\n\\nat 35.\\n\\n In support of this argument, the government points to the following.\\n\\nFirst, Pauling and Low mixed and cut heroin together. Second, Pauling sold 89\\n\\ngrams of heroin sourced from Low. Third, Pauling and Low discussed a\\n\\ncustomer from Queens, which Pauling described as ʺgoodʺ and ʺalready\\n\\nestablished.ʺ Appʹx at 116. Fourth, Pauling knew that Lowʹs operation was large\\n\\nenough to require one worker and a stash house. Finally, Pauling and Low had\\n\\nspecific discussions in which they appeared to contemplate future distribution of\\n\\ndrugs. For instance, on July 12, just before Pauling was arrested, Low told\\n\\nPauling that he had ʺa nice amount of that shit left,ʺ to which Pauling replied, ʺI\\n\\ngot you, I, Iʹm a be hittinʹ you . . . when, um, dude calls me.ʺ Id. at 146.\\n\\nAccording to the government, it would be rational for a jury to infer, for\\n\\n\\n\\n\\n 23\\n\\fexample, that a ʺʹniceʹ amount was at least enough to fill one of Paulingʹs large\\n\\norders,ʺ that is, between 14 and 30 grams. Governmentʹs Br. at 35.\\n\\n Over the course of the 17‐day period from June 26 to July 12, 2016,\\n\\nLow supplied Pauling with 89 grams of heroin over four transactions ‐‐ an\\n\\naverage of 22.25 grams per transaction, with a low of 14 grams and a high of 30\\n\\ngrams. While it is certainly within the realm of possibility that the reference to ʺa\\n\\nnice amountʺ meant 14 grams or 30 grams of heroin, it also could have referred\\n\\nto a lesser quantity ‐‐ something more than the one‐ or two‐gram sales that\\n\\nsometimes occurred but less than the 11 grams needed to reach the 100‐gram\\n\\nthreshold. See Quattrone, 441 F.3d at 169 (noting that ʺcourts may not credit\\n\\ninferences within the realm of possibility when those inferences are\\n\\nunreasonableʺ). On the present record, the conclusion that ʺa nice amountʺ\\n\\nmeans 11 grams or more may be reasonable speculation, but it is still speculation\\n\\nand therefore is an insufficient basis on which to rest a guilty verdict.8 See\\n\\n\\n\\n8 In one transaction, Pauling tells a buyer, ʺI only got 10 grams here.ʺ Appʹx at 199.\\nIt might be said that ʺonly . . . 10 gramsʺ contrasts with, rather than reflects, a ʺnice\\namount,ʺ thus enabling the inference that a ʺnice amountʺ is something more than 10\\ngrams of heroin. But considered in context, no such inference is possible. Pauling told\\nthe purchaser that he ʺonlyʺ had 10 grams because he did not have enough heroin to fill\\nthe buyerʹs 20‐gram order. See Trial Tr. at 123:21‐23 (ʺ[H]e didnʹt have enough. He\\ndidnʹt have what I ordered. I ordered 20, and he didnʹt have enough grams of heroin to\\ngive me. He only had ten . . . grams.ʺ).\\n 24\\n\\fLangston, 630 F.3d at 314; see also OʹLaughlin, 568 F.3d at 302 (ʺThe instant facts\\n\\nmay support a reasonable speculation that OʹLaughlin was the assailant, but not\\n\\nsufficient evidence to establish his guilt. Taken together, the circumstantial\\n\\nevidence in this case, even when drawing all reasonable inferences in favor of the\\n\\nprosecution, does not permit any rational jury to conclude that OʹLaughlin was\\n\\nthe assailant beyond a reasonable doubt.ʺ); Newman, 543 F.3d at 796‐97\\n\\n(ʺAlthough circumstantial evidence alone can support a conviction, there are\\n\\ntimes that it amounts to only a reasonable speculation and not to sufficient\\n\\nevidence. . . . [W]here the evidence taken in the light most favorable to the\\n\\nprosecution creates only a reasonable speculation that [an element of the crime is\\n\\nmet], there is insufficient evidence to satisfy the Jackson standard.ʺ). Because of\\n\\nthe lack of representative proof of the quantity represented by a ʺniceʺ amount,\\n\\nthe instant case is more like Martinez and Shonubi II than Adames.\\n\\n And even assuming it was reasonable for the jury to infer that\\n\\nPauling and Low conspired to distribute an additional 11 or more grams of\\n\\nheroin, ʺ[w]e must also be satisfied that the inferences are sufficiently supported\\n\\nto permit a rational juror to find that the [quantity] element . . . is established\\n\\nbeyond a reasonable doubt.ʺ Martinez, 54 F.3d at 1043. In this case, we are not\\n\\n\\n\\n 25\\n\\fsatisfied that the proof adduced by the government at trial could permit any\\n\\nrational trier of fact to conclude, beyond a reasonable doubt, that Pauling and\\n\\nLow conspired to distribute an additional 11 grams of heroin. See Jackson, 443\\n\\nU.S. at 320 (ʺ[I]t could not seriously be argued that such a ʹmodicumʹ of evidence\\n\\ncould by itself rationally support a conviction beyond a reasonable doubt.ʺ).\\n\\nAccordingly, the district court correctly determined that there was insufficient\\n\\nevidence to support the juryʹs finding that Pauling and Low conspired to\\n\\ndistribute 100 grams or more of heroin and, thus, properly granted Paulingʹs\\n\\nRule 29 motion.\\n\\n Our conclusion is supported by decisions of other courts. Many of\\n\\nour sister circuits have reversed convictions where proof of drug quantity was\\n\\nspeculative on facts analogous to these. See United States v. Navarette‐Aguilar, 813\\n\\nF.3d 785, 793, 796 (9th Cir. 2015) (rejecting governmentʹs argument that ʺpatternʺ\\n\\nof drug dealing between conspirators ʺallowed the jury to infer a preexisting\\n\\nagreement to distributeʺ 250 additional grams of heroin because ʺit would be\\n\\nspeculative to infer that the defendants agreed to any future transactions such\\n\\nthat they would reach the one kilogram markʺ); United States v. Daniels, 723 F.3d\\n\\n562, 571 (5th Cir. 2013) (rejecting governmentʹs argument that distribution of five\\n\\n\\n\\n 26\\n\\fkilograms of cocaine was inferable from evidence of distribution of roughly 1.5\\n\\nkilograms of cocaine to one buyer, combined with evidence of sales to six other\\n\\nbuyers, because, ʺwithout more evidence as to the quantity of these other sales,ʺ\\n\\nfinding of five kilograms was mere speculation); United States v. Hickman, 626\\n\\nF.3d 756, 768‐70 (4th Cir. 2010) (rejecting governmentʹs argument that the four‐\\n\\nmonth course of conduct between supplier and distributor was ʺpart of\\n\\nsomething largerʺ such that jury could infer an additional 174 grams of heroin\\n\\nbecause it would be based on a ʺhunch or intuition,ʺ and jury cannot ʺsimply\\n\\nguess at the magnitude or frequency of unknown criminal activityʺ (internal\\n\\nquotation marks omitted)).\\n\\n To the extent the government separately argues that the substantial\\n\\ninteractions between Pauling and Low proved that additional quantities\\n\\ndistributed by Low were reasonably foreseeable to Pauling, we agree that such\\n\\nan inference would be reasonable. But even so, based on the evidence here, no\\n\\njury could reasonably conclude that any specific quantity of heroin was\\n\\nattributable to Low, beyond the undisputed 89 grams. The fact that Lowʹs\\n\\noperation involved a stash house and a worker, and that Pauling was aware of\\n\\nthese facts, is simply not specific evidence of drug quantity. In the absence of\\n\\n\\n\\n 27\\n\\fany evidence indicating the quantities generally (or specifically) associated with\\n\\nLowʹs operation, quantity is not inferable. There is, therefore, no additional\\n\\nquantity attributable to Low that Pauling could fairly be said to have reasonably\\n\\nforeseen.\\n\\n * * *\\n\\n Although this is a close case that tests the boundary that exists\\n\\nbetween the drawing of a permissible inference and impermissible speculation,\\n\\nonly surmise and guesswork could lead a jury to determine that Pauling and\\n\\nLow conspired to distribute an additional 11 grams of heroin. ʺWe are obliged to\\n\\nview the evidence with all reasonable inferences drawn in the Governmentʹs\\n\\nfavor, but we may not permit that rule to displace the even more important rule\\n\\nthat all elements of an offense must be proven beyond a reasonable doubt.ʺ\\n\\nMartinez, 54 F.3d at 1049 (Newman, J., dissenting). While one could argue, based\\n\\non reasonable speculation, that it was ʺlikelyʺ or ʺprobableʺ that Low and Pauling\\n\\nagreed to distribute an additional 11 grams of heroin, the government had to\\n\\nprove more than likelihood or probability ‐‐ it had to prove an agreement to\\n\\ndistribute (or possess with intent to distribute) an additional 11 or more grams of\\n\\nheroin beyond a reasonable doubt. See Lorenzo, 534 F.3d at 159 (noting that ʺit\\n\\n\\n\\n 28\\n\\fwould not satisfy the Constitution to have a jury determine that the defendant is\\n\\nprobably guiltyʺ (internal quotation marks and alternations omitted)).\\n\\n Because the government failed to do so, the district court correctly\\n\\ndetermined, viewing all of the evidence in the light most favorable to the\\n\\ngovernment and crediting every inference in its favor, that the evidence at trial\\n\\nwas insufficient to support a jury finding that 100 or more grams of heroin were\\n\\nattributable to the Pauling‐Low conspiracy.\\n\\n CONCLUSION\\n\\n For the reasons set forth above, the judgment of the district court is\\n\\nAFFIRMED. The case is REMANDED for sentencing.\\n\\n\\n\\n\\n 29\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1991,"cells":{"id":{"kind":"number","value":4622549,"string":"4,622,549"},"name":{"kind":"string","value":"FRESNO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Plaintiff-Appellee, v. ISAACSON/WEAVER FAMILY TRUST, Objector-Appellant."},"name_abbreviation":{"kind":"string","value":"Fresno Cnty. Employees' Ret. Ass'n v. Isaacson/Weaver Family Trust"},"decision_date":{"kind":"string","value":"2019-05-23"},"docket_number":{"kind":"string","value":"17-2662-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jacobs, Pooler, Wesley\", \"parties\": \"\", \"opinions\": [{\"author\": \"POOLER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2662‐cv\\nFresno Cty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Family Tr.\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ____________________\\n\\n August Term, 2018\\n\\n(Argued: November 15, 2018 Decided: May 23, 2019)\\n\\n Docket No. 17‐2662\\n\\n ____________________\\n\\nFRESNO COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION,\\n\\n Plaintiff‐Appellee,\\n\\n v.\\n\\nISAACSON/WEAVER FAMILY TRUST,\\n\\n Objector‐Appellant.1\\n\\n ____________________\\n\\nBefore: JACOBS, POOLER, and WESLEY, Circuit Judges.\\n\\n The Isaacson/Weaver Family Trust appeals from the July 26, 2017, order of\\n\\nthe United States District Court for the Southern District of New York (Alison J.\\n\\n\\n\\n1 The Clerk of Court is directed to amend the caption as above.\\n\\fNathan, J.) granting Bernstein Litowitz Berger & Grossmann LLP’s request for a\\n\\npercentage fee awarded from the common settlement fund. The fee award was\\n\\ncompensation for the firm’s representation of a class of plaintiffs that settled\\n\\nfederal securities law claims against BioScrip, Inc. The Isaacson/Weaver Family\\n\\nTrust, a member of the class, objected to the fee award in the district court,\\n\\narguing that the class’s claims were brought pursuant to statutes containing fee‐\\n\\nshifting provisions and therefore class counsel’s fee award was presumptively\\n\\nlimited to the unenhanced lodestar (counsel’s hourly rate multiplied by the hours\\n\\nexpended on the case). The district court found this objection unavailing and\\n\\nruled that, because the parties’ settlement agreement provided for class counsel\\n\\nto be compensated from a common settlement fund, class counsel was entitled to\\n\\nfees under the equitable common‐fund doctrine rather than pursuant to a\\n\\nstatutory fee‐shifting provision. Under the common‐fund doctrine, the district\\n\\ncourt held that a percentage fee award was appropriate.\\n\\n On appeal, we conclude that, regardless of whether the claims settled here\\n\\nwere initiated under fee‐shifting statutes, the common‐fund doctrine properly\\n\\ncontrols the district court’s allocation of attorneys’ fees from a common\\n\\n\\n 2\\n\\fsettlement fund. This is because class plaintiffs have received the benefit of\\n\\ncounsel’s representation and assumption of the risk that the lawsuit will not\\n\\nrender a recovery, and thus the class may be fairly charged for counsel’s\\n\\nassumption of contingent risk. The district court was therefore entitled to\\n\\nexercise its discretion to award either a percentage‐of‐the‐fund fee or a lodestar\\n\\nfee to class counsel. We offer no opinion as to whether the claims settled here\\n\\nwere initiated under fee‐shifting statutes. Accordingly, we AFFIRM the order of\\n\\nthe district court.\\n\\n Affirmed.\\n\\n ____________________\\n\\n ERIC ALAN ISAACSON, La Jolla, CA, for Objector‐\\n Appellant.\\n\\n HANNAH G. ROSS, Bernstein Litowitz Berger &\\n Grossmann LLP (Jai Chandrasekhar, on the brief), New\\n York, NY, for Plaintiff‐Appellee.\\n\\nPOOLER, Circuit Judge:\\n\\n The objection of the Isaacson/Weaver Family Trust (the “Objector”) to\\n\\nBernstein Litowitz Berger & Grossmann LLP’s fee award raises a novel issue of\\n\\nthe proper principles for allocating fees awarded from a common‐fund\\n\\n 3\\n\\fsettlement. The Objector argues that, whenever an action is initiated under a\\n\\nstatute with a fee‐shifting provision, an attorney’s fee is presumptively limited to\\n\\nthe unenhanced lodestar fee, even if the action is settled by the creation of a\\n\\ncommon fund. Appellee argues that the contrary is true, claiming that, whenever\\n\\nan action is settled with the creation of a common fund, equitable principles\\n\\npermit the district court to award a fee that can be calculated using either the\\n\\nlodestar‐fee method or a percentage‐of‐the‐fund method. As Second Circuit case\\n\\nlaw has long implied, we hold that, even if a case is brought pursuant to a fee‐\\n\\nshifting statute, common‐fund principles control fee awards authorized from a\\n\\ncommon fund, and a common‐fund fee award may be calculated as the lodestar\\n\\nor as a percentage of the common fund. In so holding, we recognize the acute\\n\\ndifference between assessing a fee award against a defendant, who reaps no\\n\\nbenefit from an action brought against him, and requiring class members to\\n\\ncompensate counsel for representation that enriches the class. We AFFIRM the\\n\\nwell‐reasoned order of the district court finding that Bernstein Litowitz Berger &\\n\\nGrossmann LLP is entitled to its requested fee and expense award.\\n\\n\\n\\n\\n 4\\n\\f BACKGROUND\\n\\n This case is collateral litigation arising from the June 16, 2016, settlement of\\n\\na consolidated securities class action brought by shareholders of BioScrip, Inc.\\n\\nThe district court appointed Fresno County Employees’ Retirement Association\\n\\nas lead plaintiff and Bernstein Litowitz Berger & Grossmann LLP (“Lead\\n\\nCounsel”) as lead counsel for the action. The class sought to recover for two\\n\\nallegedly material misrepresentations that BioScrip, Inc. made and brought an\\n\\naction under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934;\\n\\nSecurities and Exchange Commission Rule 10b‐5; and Sections 11, 12(a)(2), and\\n\\n15 of the Securities Act of 1933.\\n\\n After the consolidated class‐action complaint largely survived a motion to\\n\\ndismiss and the case entered discovery, the parties agreed to settle all of the\\n\\naforementioned claims. The settlement called for the class‐action defendants to\\n\\npay $10,900,000 into a common fund in exchange for the class releasing all claims\\n\\nasserted against the defendants in the action. The settlement also provided that\\n\\n“Lead Counsel will apply to the Court for a collective award of attorneys’ fees to\\n\\nPlaintiffs’ Counsel to be paid solely from (and out of) the Settlement Fund.”\\n\\n\\n 5\\n\\fStipulation & Agreement of Settlement at 20, ¶ 19, Faig v. BioScrip, Inc., No. 13‐cv‐\\n\\n6922(AJN) (S.D.N.Y. Feb. 4, 2016), ECF No. 104‐5. Thereafter, Lead Counsel\\n\\nmoved for an award of attorneys’ fees of 25% of the settlement fund, totaling\\n\\n$2,725,000 plus interest, and an expense award of $133,565.28. Lead Counsel’s\\n\\nrequested fee award amounted to a 1.39 multiplier of the lodestar fee.\\n\\n The Isaacson/Weaver Family Trust filed an objection to Lead Counsel’s\\n\\nrequested award, arguing that Lead Counsel’s award should be reduced to the\\n\\nlodestar amount. No other class member objected to the settlement agreement or\\n\\nthe requested fee. The district court subsequently held a settlement fairness\\n\\nhearing where it heard argument on, among other things, Lead Counsel’s fee\\n\\nrequest. In a thorough and discerning opinion, the district court found that Lead\\n\\nCounsel’s requested fee was reasonable and granted the fee in full.\\n\\n DISCUSSION\\n\\n The parties primarily dispute the method by which a reasonable fee\\n\\nshould be calculated when class counsel settles claims brought pursuant to\\n\\nstatutes with fee‐shifting provisions by establishing a common settlement fund.\\n\\nThe Objector argues that, because the parties created the common fund to resolve\\n\\n\\n 6\\n\\fclaims based on statutes with fee‐shifting provisions, the Supreme Court’s fee‐\\n\\nshifting jurisprudence applies, and Lead Counsel is presumptively entitled to\\n\\nonly the unenhanced lodestar fee. Lead Counsel disagrees, arguing that the\\n\\nsettlement that created the common fund resolved claims based on statutes that\\n\\ndo not have applicable fee‐shifting provisions, and regardless, the common‐fund\\n\\ndoctrine governs a district court’s award of attorneys’ fees when counsel has\\n\\nsecured a settlement fund for the benefit of the class. We make clear today what\\n\\nhas long been implicit in this Circuit’s jurisprudence: regardless of whether a\\n\\ncase is brought pursuant to a statute with a fee‐shifting provision, if the parties\\n\\nsettle the case by creating a common fund, common‐fund principles control class\\n\\ncounsel’s fee recovery. So concluding, we offer no opinion on whether the\\n\\nstatutes pursuant to which the underlying case arose contain applicable fee‐\\n\\nshifting provisions.\\n\\nI. Standard of Review\\n\\n “The Second Circuit reviews a district court’s decision to grant or deny an\\n\\naward of attorneys’ fees for abuse of discretion, reviewing de novo any rulings of\\n\\nlaw.” Flanagan, Lieberman, Hoffman & Swaim v. Ohio Pub. Emps. Ret. Sys., 814 F.3d\\n\\n\\n 7\\n\\f652, 656 (2d Cir. 2016). Because the Objector has challenged the fee award based\\n\\non the district court’s ruling of law that Lead Counsel was entitled to a common‐\\n\\nfund fee award, our review is de novo.\\n\\nII. The American Rule and Its Exceptions\\n\\n In the American system of justice, “the prevailing litigant is ordinarily not\\n\\nentitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv.\\n\\nCo. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). There are two well‐known\\n\\nexceptions to this “American Rule”: (1) where Congress has specifically\\n\\nlegislated that the prevailing party may recover fees from the losing party, see\\n\\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 & n.3 (2010), and (2) where “a\\n\\nlitigant or a lawyer . . . recovers a common fund for the benefit of persons other\\n\\nthan himself or his client,” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).\\n\\nWhile in both instances an attorney is entitled to a recovery that is ultimately\\n\\nfinanced by the opposing party, the Supreme Court has placed greater\\n\\nrestrictions on attorneys’ fees recovered from statutory fee‐shifting provisions\\n\\nthan on fees recovered from common funds.\\n\\n\\n\\n\\n 8\\n\\f When a statute’s fee‐shifting provision authorizes a reasonable attorneys’\\n\\nfee, the Supreme Court has held that “the lodestar method yields a fee that is\\n\\npresumptively sufficient.”2 Perdue, 559 U.S. at 552. Fee‐shifting provisions\\n\\ntypically encourage counsel to represent plaintiffs in actions where “Congress\\n\\nhas opted to rely heavily on private enforcement to implement public policy.”\\n\\nAlyeska Pipeline Serv. Co., 421 U.S. at 263. Where a litigant acts as a private\\n\\nattorney general, the goal of fee shifting is to provide “a fee that is sufficient to\\n\\ninduce a capable attorney to undertake the representation of a meritorious . . .\\n\\ncase.” Perdue, 559 U.S. at 552. The defendant effectively finances the private\\n\\nenforcement action against it as a component of its liability. See Alyeska Pipeline\\n\\nServ. Co., 421 U.S. at 253‐54 (quoting fee‐shifting provisions that refer to taxing\\n\\nthe opposing party for fees “incident to the judgment” (internal quotation marks\\n\\nomitted)).\\n\\n Notably, an unenhanced lodestar fee does not account for the contingent\\n\\nrisk that a lawyer may assume in taking on a case. See City of Burlington v. Dague,\\n\\n\\n\\n2The lodestar method calculates a given attorney’s fee by multiplying an\\nattorney’s reasonable hourly rate by the number of hours that the attorney spent\\non the case. Perdue, 559 U.S. at 546.\\n 9\\n\\f505 U.S. 557, 562‐63 (1992); Pennsylvania v. Del. Valley Citizens’ Council for Clean\\n\\nAir (Del. Valley II), 483 U.S. 711, 724‐25 (1987). This makes particular sense where\\n\\nthe defendant shoulders the burden of fees because “[a]n attorney operating on a\\n\\ncontingency‐fee basis pools the risks presented by his various cases.” Dague, 505\\n\\nU.S. at 565. Therefore, “enhancing fees for risk of loss forces losing defendants to\\n\\ncompensate plaintiff’s lawyers for not prevailing against defendants in other\\n\\ncases.” Del. Valley II, 483 U.S. at 724‐25. The defendant, however, has no\\n\\nresponsibility to compensate an attorney for risk in the attorney’s other cases and\\n\\nwould be unfairly penalized if it were forced to subsidize an attorney’s other\\n\\nventures. Thus, where counsel receives a fee award pursuant to a fee‐shifting\\n\\nstatute authorizing a reasonable fee, we presume that the unenhanced lodestar is\\n\\na reasonable fee. Perdue, 559 U.S. at 552.\\n\\n In contrast to fees awarded pursuant to fee‐shifting provisions, fees\\n\\nawarded pursuant to the common‐fund doctrine do not extract a tax on the\\n\\nlosing party but instead confer a benefit on the victorious attorney for her\\n\\nrepresentation of her client and the class members. See Boeing, 444 U.S. at 478.\\n\\n“The doctrine rests on the perception that persons who obtain the benefit of a\\n\\n\\n 10\\n\\flawsuit without contributing to its cost are unjustly enriched at the successful\\n\\nlitigant’s expense.” Id. The common‐fund doctrine is therefore rooted in the\\n\\ncourts’ “historic power of equity to permit” a person who secures a fund for the\\n\\nbenefit of others to collect a fee directly from the fund. Alyeska Pipeline Serv. Co.,\\n\\n421 U.S. at 257 (citing Trustees v. Greenough, 105 U.S. 527, 531‐33 (1881)). Under\\n\\nthe common‐fund doctrine, a district court may select “either the lodestar or\\n\\npercentage of the recovery methods” to calculate fees. Goldberger v. Integrated\\n\\nRes., Inc., 209 F.3d 43, 45 (2d Cir. 2000); see also McDaniel v. County of Schenectady,\\n\\n595 F.3d 411, 419 (2d Cir. 2010). A common‐fund‐percentage fee must still be\\n\\nevaluated for reasonableness, see, e.g., McDaniel, 595 F.3d at 423, but may exceed\\n\\nthe lodestar—i.e., it may be less than, equal to, or greater than the lodestar, see,\\n\\ne.g., Goldberger, 209 F.3d at 47.\\n\\n Accordingly, the means by which an attorney becomes entitled to a fee can\\n\\naffect the method used to calculate what a reasonable fee is. Subject always to the\\n\\ndistrict court’s discretion, an attorney seeking a fee after establishing statutory\\n\\nliability will presumptively receive a fee equal to the unenhanced lodestar, and\\n\\nan attorney seeking a fee after establishing a common fund will receive a fee\\n\\n\\n 11\\n\\fcalculated using either the lodestar method or a percentage‐of‐the‐fund method,\\n\\nwhich can yield a fee that is less than, equal to, or greater than the lodestar fee.\\n\\nIII. Fee‐Shifting Statutes Do Not Circumscribe the Common‐Fund Doctrine\\n\\n Fee‐shifting principles and the common‐fund doctrine occupy separate\\n\\nrealms. In Alyeska Pipeline Service Co. v. Wilderness Society, the Court identified a\\n\\n“consistently followed” rule that fee‐shifting statutes do “not interfer[e] with the\\n\\nhistoric power of equity to permit . . . a party preserving or recovering a fund for\\n\\nthe benefit of others in addition to himself, to recover his costs, including his\\n\\nattorneys’ fees, from the fund . . . itself or directly from the other parties enjoying\\n\\nthe benefit.” 421 U.S. at 257. The Supreme Court therefore suggested that, even\\n\\nwhen statutory fees and the common‐fund doctrine collide, the common‐fund\\n\\ndoctrine operates autonomously from fee‐shifting principles.\\n\\n Our Circuit has followed suit. In County of Suffolk v. Long Island Lighting\\n\\nCo., this Court considered whether class counsel could be awarded fees from a\\n\\ncommon fund despite the fact that counsel would be entitled to statutory fees\\n\\nunder the Racketeer Influenced and Corrupt Organizations Act if it prevailed on\\n\\nappeal. 907 F.2d 1295, 1326‐27 (2d Cir. 1990). En route to deciding that class\\n\\n\\n 12\\n\\fcounsel was entitled to fees for its significant work in bringing about a\\n\\nsettlement, we observed that “fee‐shifting statutes are generally not intended to\\n\\ncircumscribe the operation of the equitable fund doctrine.” Id. at 1327. An\\n\\nexception to this principle exists only if the equitable‐fund doctrine interferes\\n\\nwith a fee‐shifting statute’s purpose “to encourage the prosecution of certain\\n\\nfavored actions by private parties,” in which case the doctrine yields to the\\n\\nstatute. Id. We determined that, where a common fund results from the\\n\\ncommencement of a favored action, no such interference exists, and class counsel\\n\\nis entitled to fees under the common‐fund doctrine notwithstanding a statutory\\n\\nfee‐shifting provision. Id. at 1327‐28.\\n\\n In Goldberger v. Integrated Resources, Inc., we again obliquely addressed the\\n\\ncommon‐fund doctrine vis‐à‐vis statutory fee‐shifting principles. 209 F.3d 43.\\n\\nThere, we considered whether a securities class‐action settlement—settling\\n\\nclaims brought under Rule 10b‐5, id. at 45, one of the provisions at issue in this\\n\\ncase—could support an award of attorneys’ fees based on a percentage‐of‐the‐\\n\\nfund approach. Id. at 47. We noted that both the lodestar and the percentage‐of‐\\n\\nthe‐fund methods can yield a “reasonable attorneys’ fee” from a common‐fund\\n\\n\\n 13\\n\\fsettlement. Id. at 47‐50; see also McDaniel, 595 F.3d at 419. The Court’s analysis\\n\\nforeshadowed our decision today: in rejecting counsel’s claim “that the district\\n\\ncourt erroneously relied on the strictures against risk multipliers in statutory fee‐\\n\\nshifting cases” when it awarded a lodestar fee in a common‐fund case, we noted\\n\\nthat “[c]ourts have held such strictures inapplicable to cases like this, where the\\n\\nlawyers seek fees from a common fund they won for plaintiffs.” Goldberger, 209\\n\\nF.3d at 54 n.3.\\n\\nIV. Our Sister Circuits Have Articulated Sound Rationale for Precluding the\\n Application of Fee‐Shifting Principles to Common‐Fund Awards\\n\\n Our sister circuits have persuasively supported Goldberger’s\\n\\nunceremonious rejection of the suggestion that statutory fee‐shifting principles\\n\\ncurtail a district court’s discretion in common‐fund cases and have offered\\n\\ncompelling reasons why a common‐fund fee may differ from a statutory fee.\\n\\n The Ninth Circuit has held that “unless Congress has forbidden the\\n\\napplication of the common fund doctrine in cases in which attorneys could\\n\\npotentially recover fees under the type of fee‐shifting statutes at issue here, the\\n\\ncourts retain their equitable power to award common fund attorneys’ fees.”\\n\\nStaton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). The court reasoned that in\\n\\n 14\\n\\fnegotiating a settlement, “a defendant is interested only in disposing of the total\\n\\nclaim asserted against it.” Id. at 964 (internal quotation marks omitted).\\n\\nTherefore, “the allocation between the class payment and the attorneys’ fees is of\\n\\nlittle or no interest to the defense.” Id. (internal quotation marks omitted); see also\\n\\nGoldberger, 209 F.3d at 52‐53 (noting this principle in the context of parties’\\n\\nincentives to oppose a fee award).\\n\\n The settling defendant’s focus is on its bottom line, and once that bottom\\n\\nline has been inked, the defendant’s interest in how class members and class\\n\\ncounsel spend the settlement money dwindles. This is in stark contrast to fees\\n\\nawarded pursuant to a fee‐shifting statute, where as part of its liability and in\\n\\naddition to any monetary judgment, the defendant is forced to pay for the costs\\n\\nof the statute’s enforcement against it. Cf. Alyeska Pipeline Serv. Co., 421 U.S. at\\n\\n247‐54 (tracing the evolution of taxable costs against a defendant as an incident\\n\\nof the defendant’s liability). Therefore, where a statute shifts fees, we consider a\\n\\nreasonable fee with the defendant’s perspective in mind. See Del. Valley II, 483 U.S.\\n\\nat 724‐25 (rejecting contingency enhancement of lodestar fee after discussing the\\n\\nramifications of such an enhancement on defendants).\\n\\n\\n 15\\n\\f In contrast, where an attorney has settled a case and created a common\\n\\nfund, we determine what a reasonable fee is from the plaintiff’s perspective.\\n\\nCritically, a reasonable fee from the plaintiff’s perspective can account for\\n\\ncontingency risk where such risk exists,3 and a common‐fund fee may therefore\\n\\nexceed what would be a “reasonable fee” in the fee‐shifting context. The Seventh\\n\\nCircuit has persuasively articulated why accounting for contingency risk can be\\n\\nappropriate when the plaintiff funds the fee but not when the defendant funds the\\n\\nfee. Assessing a fee that accounts for contingency risk against a defendant would\\n\\nrequire the defendant to “subsidiz[e] plaintiffs’ attorneys for unsuccessful\\n\\nlawsuits against other defendants.” Florin v. Nationsbank of Ga., N.A., 34 F.3d 560,\\n\\n565 (7th Cir. 1994). But “[i]n a common fund case, . . . because compensation for\\n\\nrisk is charged against the plaintiff class, defendants would not be forced to\\n\\nsubsidize directly plaintiffs’ attorneys’ losing endeavors.” Id. (emphasis added).\\n\\n\\n\\n\\n3We note that it will not always be the case that an attorney representing a class\\nassumes compensable contingency risk. A case may, for example, have such a\\nhigh likelihood of being meritorious that compensation for contingency risk is\\nunnecessary. See, e.g., Goldberger, 209 F.3d at 52 (noting that there is not “a\\nsubstantial contingency risk in every common fund case” and cautioning against\\ncalculating contingency risk into every percentage‐fee award).\\n 16\\n\\f The plaintiff class is therefore appropriately charged for contingency risk\\n\\nwhere such risk is appreciable because the class has benefited from class\\n\\ncounsel’s decision to devote resources to the class’s cause at the expense of\\n\\ntaking other cases. That is, because class counsel has decided to represent the\\n\\nplaintiff class, class counsel’s ability to freely represent other clients is limited by\\n\\nthe risk she has assumed that the class’s cause will be unsuccessful. The class,\\n\\nhaving been enriched by counsel’s acceptance of its cause at the expense of other\\n\\nclients’ causes, may be charged for counsel’s assumption of risk on its behalf.\\n\\nConsistent with the reasoning and holding of the Ninth Circuit in Staton, the\\n\\nSeventh Circuit has therefore held that “common fund principles properly\\n\\ncontrol a case [that] is initiated under a statute with a fee‐shifting provision, but\\n\\nis settled with the creation of a common fund.” Id. at 564; see also Staton, 327 F.3d\\n\\nat 968.\\n\\nV. The Common‐Fund Doctrine Does Not Threaten to Misalign Counsel\\n and Her Client’s Incentives\\n\\n In agreeing with the Seventh and Ninth Circuits, we decline to yield to the\\n\\nObjector’s contention that applying common‐fund principles to fee recoveries\\n\\nfrom cases initiated under fee‐shifting statutes will misalign attorneys’\\n\\n 17\\n\\fincentives. The Objector argues that allowing counsel to extract a percentage fee\\n\\nunder the common‐fund doctrine encourages counsel to settle cases early—even\\n\\nwhen her client’s best interests are served by prosecuting the claim to trial. We\\n\\nrecognize that both the lodestar methodology and the common‐fund\\n\\nmethodology provide imperfect solutions for aligning an attorney’s incentive to\\n\\nsettle with her client’s. McDaniel, 595 F.3d at 419 (“[N]either the lodestar nor the\\n\\npercentage‐of‐fund approach to awarding attorneys’ fees in common fund cases\\n\\nis without problems.”). We nonetheless do not share in the Objector’s concern\\n\\nthat the percentage‐fee approach will destroy class representation for two\\n\\nprimary reasons: first, a fee awarded under the common‐fund doctrine provides\\n\\nclass counsel with the incentive to maximize the settlement payout for the class\\n\\nbecause a larger settlement yields a proportionally larger fee; second, a district\\n\\ncourt is required to review class settlements and class counsel’s fees, providing\\n\\nan extra layer of security that class counsel will fairly and adequately represent\\n\\nthe class.\\n\\n As to the first reason, we have previously noted that “the percentage\\n\\nmethod has the advantage of aligning the interests of plaintiffs and their\\n\\n\\n 18\\n\\fattorneys more fully by allowing the latter to share in both the upside and\\n\\ndownside risk of litigation.” Id. Thus, once the parties have agreed to settle, the\\n\\npercentage‐of‐the‐fund methodology serves as important motivation for counsel\\n\\nto maximize the class’s recovery, and, a fortiori, counsel’s fee.\\n\\n This incentive structure is critically important because, under the common‐\\n\\nfund doctrine, class counsel is not entitled to a common‐fund fee or an\\n\\nunenhanced lodestar fee by force of entering into a settlement agreement on the\\n\\nclass’s behalf. Rather, the district court retains discretion to determine which\\n\\nmethodology it will use to calculate class counsel’s reasonable fee. Goldberger, 209\\n\\nF.3d at 50 (“[W]e hold that both the lodestar and the percentage of the fund\\n\\nmethods are available to district judges in calculating attorneys’ fees in common\\n\\nfund cases.”). As such, class counsel cannot enter into a premature settlement\\n\\nconfident that it will receive a percentage‐of‐the‐fund fee that exceeds its lodestar\\n\\nfee. Since the district court alone makes the decision of how class counsel’s fee\\n\\nwill be calculated, class counsel’s safest bet for securing a large fee award is to\\n\\nprosecute the action until the point at which settlement is the best available\\n\\noption and thereafter maximize her client’s returns.\\n\\n\\n 19\\n\\f As to the second reason that a percentage‐fee method is workable despite\\n\\nthe Objector’s concerns, we are comforted by the fact that a “court is to act as a\\n\\nfiduciary who must serve as a guardian of the rights of absent class members” in\\n\\nreviewing a class‐action settlement and a class fee award. Id. at 52 (internal\\n\\nquotation marks omitted). The Federal Rules of Civil Procedure require that\\n\\n“[t]he claims, issues, or defenses of a certified class—or a class proposed to be\\n\\ncertified for purposes of settlement—may be settled, voluntarily dismissed, or\\n\\ncompromised only with the court’s approval.” Fed. R. Civ. P. 23(e) (emphasis\\n\\nadded). Rule 23 requires the district court to hold a hearing and consider a\\n\\nnumber of factors to ensure that a proposed settlement “is fair, reasonable, and\\n\\nadequate,” id. 23(e)(2), and the court must specifically evaluate “the terms of any\\n\\nproposed award of attorney’s fees,” id. 23(e)(2)(C)(iii). Thus, the district court is\\n\\nrequired to review both the terms of the settlement and any fee award\\n\\nencompassed in a settlement agreement. This review provides a backstop that\\n\\nprevents unscrupulous counsel from quickly settling a class’s claims to cut a\\n\\ncheck.\\n\\n\\n\\n\\n 20\\n\\f In addition to ex post facto review of fee awards, some district courts have\\n\\nelected to exercise their discretion to select and manage class counsel at the\\n\\noutset of the litigation. See Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 201 n.6\\n\\n(3d Cir. 2000) (“[D]istrict courts can avoid many of [the] complications associated\\n\\nwith fee awards by setting fee guidelines and ground rules early in the litigation\\n\\nprocess.”). One example of such an ex ante approach to selecting class counsel,\\n\\npopular in securities class actions, is for the district court to request that\\n\\nprospective class attorneys submit proposals regarding their qualifications,\\n\\npredictions for expected recovery, and their prospective fees. See In re Synthroid\\n\\nMktg. Litig., 264 F.3d 712, 720 (7th Cir. 2001). Thereafter, “[t]he judge in turn acts\\n\\nas an agent for the class, selecting the firm that seems likely to generate the\\n\\nhighest recovery net of attorneys’ fees.” Id.; see also Gunter, 223 F.3d at 201 n.6.\\n\\nPlacing the district court at the helm of class‐counsel selection allows the district\\n\\ncourt to actively consider class counsel’s performance while the litigation\\n\\nremains pending and is another means of monitoring fee awards.\\n\\n Further, if judicial review of class‐action settlements with a “searching\\n\\nassessment” of counsel’s fee award, McDaniel, 595 F.3d at 419 (internal quotation\\n\\n\\n 21\\n\\fmarks omitted), were not solace enough for the Objector, we have also counseled\\n\\nthat the district court should use the lodestar as a “baseline” against which to\\n\\ncross‐check a percentage fee: “we encourage the practice of requiring\\n\\ndocumentation of hours as a ‘cross check’ on the reasonableness of the requested\\n\\npercentage,” Goldberger, 209 F.3d at 50. Thereafter, “the reasonableness of the\\n\\nclaimed lodestar can be tested by the court’s familiarity with the case.” Id. Fee\\n\\nrequests that deviate wildly from the unenhanced lodestar fee are unlikely to\\n\\npass this cross‐check, and district courts are at liberty to reduce the requested fee\\n\\nwithin their discretion.\\n\\n We thus have confidence in the district court as fiduciary of the class and\\n\\nultimate decisionmaker on a class‐action settlement to substantially alleviate the\\n\\nObjector’s concerns about class counsel’s incentives. Having obtained such\\n\\nreassurance, we hold that, where a class action results in a common‐fund\\n\\nsettlement for the benefit of the class, the common‐fund doctrine applies and\\n\\npermits a district court to use its discretion to award class counsel either an\\n\\nunenhanced lodestar fee or a fee calculated as a percentage of the settlement\\n\\nfund. This principle applies even when claims are initiated pursuant to a statute\\n\\n\\n 22\\n\\fwith a fee‐shifting provision. Since the parties do not argue that the district court\\n\\nabused its discretion in analyzing the propriety of the fee award under the\\n\\ndiscretionary factors, we affirm the order of the district court.\\n\\n CONCLUSION\\n\\n The class, including the Objector, has benefited from Lead Counsel’s\\n\\nnegotiation of a common settlement fund. Because Lead Counsel’s fee is\\n\\nextracted directly from the beneficiaries of its work, Lead Counsel is entitled to\\n\\ncompensation not only for skillfully negotiating that settlement fund but for\\n\\nbearing the risk that the suit would not generate any recovery. Accordingly, even\\n\\nif the class’s claims were initiated under fee‐shifting statutes, common‐fund\\n\\nprinciples would govern, and the district court had the discretion to award Lead\\n\\nCounsel a fee equaling either the lodestar fee or a percentage of the fund. The\\n\\ndistrict court did not abuse its discretion when it determined that a percentage of\\n\\nthe fund reasonably compensated counsel. The district court’s order is hereby\\n\\nAFFIRMED.\\n\\n\\n\\n\\n 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4399802/\", \"author_raw\": \"POOLER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"POOLER"},"judge3":{"kind":"string","value":"WESLEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4622549/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: FRESNO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Plaintiff-Appellee, v. ISAACSON/WEAVER FAMILY TRUST, Objector-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2662‐cv\nFresno Cty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Family Tr.\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ____________________\n\n August Term, 2018\n\n(Argued: November 15, 2018 Decided: May 23, 2019)\n\n Docket No. 17‐2662\n\n ____________________\n\nFRESNO COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION,\n\n Plaintiff‐Appellee,\n\n v.\n\nISAACSON/WEAVER FAMILY TRUST,\n\n Objector‐Appellant.1\n\n ____________________\n\nBefore: JACOBS, POOLER, and WESLEY, Circuit Judges.\n\n The Isaacson/Weaver Family Trust appeals from the July 26, 2017, order of\n\nthe United States District Court for the Southern District of New York (Alison J.\n\n\n\n1 The Clerk of Court is directed to amend the caption as above.\n\fNathan, J.) granting Bernstein Litowitz Berger & Grossmann LLP’s request for a\n\npercentage fee awarded from the common settlement fund. The fee award was\n\ncompensation for the firm’s representation of a class of plaintiffs that settled\n\nfederal securities law claims against BioScrip, Inc. The Isaacson/Weaver Family\n\nTrust, a member of the class, objected to the fee award in the district court,\n\narguing that the class’s claims were brought pursuant to statutes containing fee‐\n\nshifting provisions and therefore class counsel’s fee award was presumptively\n\nlimited to the unenhanced lodestar (counsel’s hourly rate multiplied by the hours\n\nexpended on the case). The district court found this objection unavailing and\n\nruled that, because the parties’ settlement agreement provided for class counsel\n\nto be compensated from a common settlement fund, class counsel was entitled to\n\nfees under the equitable common‐fund doctrine rather than pursuant to a\n\nstatutory fee‐shifting provision. Under the common‐fund doctrine, the district\n\ncourt held that a percentage fee award was appropriate.\n\n On appeal, we conclude that, regardless of whether the claims settled here\n\nwere initiated under fee‐shifting statutes, the common‐fund doctrine properly\n\ncontrols the district court’s allocation of attorneys’ fees from a common\n\n\n 2\n\fsettlement fund. This is because class plaintiffs have received the benefit of\n\ncounsel’s representation and assumption of the risk that the lawsuit will not\n\nrender a recovery, and thus the class may be fairly charged for counsel’s\n\nassumption of contingent risk. The district court was therefore entitled to\n\nexercise its discretion to award either a percentage‐of‐the‐fund fee or a lodestar\n\nfee to class counsel. We offer no opinion as to whether the claims settled here\n\nwere initiated under fee‐shifting statutes. Accordingly, we AFFIRM the order of\n\nthe district court.\n\n Affirmed.\n\n ____________________\n\n ERIC ALAN ISAACSON, La Jolla, CA, for Objector‐\n Appellant.\n\n HANNAH G. ROSS, Bernstein Litowitz Berger &\n Grossmann LLP (Jai Chandrasekhar, on the brief), New\n York, NY, for Plaintiff‐Appellee.\n\nPOOLER, Circuit Judge:\n\n The objection of the Isaacson/Weaver Family Trust (the “Objector”) to\n\nBernstein Litowitz Berger & Grossmann LLP’s fee award raises a novel issue of\n\nthe proper principles for allocating fees awarded from a common‐fund\n\n 3\n\fsettlement. The Objector argues that, whenever an action is initiated under a\n\nstatute with a fee‐shifting provision, an attorney’s fee is presumptively limited to\n\nthe unenhanced lodestar fee, even if the action is settled by the creation of a\n\ncommon fund. Appellee argues that the contrary is true, claiming that, whenever\n\nan action is settled with the creation of a common fund, equitable principles\n\npermit the district court to award a fee that can be calculated using either the\n\nlodestar‐fee method or a percentage‐of‐the‐fund method. As Second Circuit case\n\nlaw has long implied, we hold that, even if a case is brought pursuant to a fee‐\n\nshifting statute, common‐fund principles control fee awards authorized from a\n\ncommon fund, and a common‐fund fee award may be calculated as the lodestar\n\nor as a percentage of the common fund. In so holding, we recognize the acute\n\ndifference between assessing a fee award against a defendant, who reaps no\n\nbenefit from an action brought against him, and requiring class members to\n\ncompensate counsel for representation that enriches the class. We AFFIRM the\n\nwell‐reasoned order of the district court finding that Bernstein Litowitz Berger &\n\nGrossmann LLP is entitled to its requested fee and expense award.\n\n\n\n\n 4\n\f BACKGROUND\n\n This case is collateral litigation arising from the June 16, 2016, settlement of\n\na consolidated securities class action brought by shareholders of BioScrip, Inc.\n\nThe district court appointed Fresno County Employees’ Retirement Association\n\nas lead plaintiff and Bernstein Litowitz Berger & Grossmann LLP (“Lead\n\nCounsel”) as lead counsel for the action. The class sought to recover for two\n\nallegedly material misrepresentations that BioScrip, Inc. made and brought an\n\naction under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934;\n\nSecurities and Exchange Commission Rule 10b‐5; and Sections 11, 12(a)(2), and\n\n15 of the Securities Act of 1933.\n\n After the consolidated class‐action complaint largely survived a motion to\n\ndismiss and the case entered discovery, the parties agreed to settle all of the\n\naforementioned claims. The settlement called for the class‐action defendants to\n\npay $10,900,000 into a common fund in exchange for the class releasing all claims\n\nasserted against the defendants in the action. The settlement also provided that\n\n“Lead Counsel will apply to the Court for a collective award of attorneys’ fees to\n\nPlaintiffs’ Counsel to be paid solely from (and out of) the Settlement Fund.”\n\n\n 5\n\fStipulation & Agreement of Settlement at 20, ¶ 19, Faig v. BioScrip, Inc., No. 13‐cv‐\n\n6922(AJN) (S.D.N.Y. Feb. 4, 2016), ECF No. 104‐5. Thereafter, Lead Counsel\n\nmoved for an award of attorneys’ fees of 25% of the settlement fund, totaling\n\n$2,725,000 plus interest, and an expense award of $133,565.28. Lead Counsel’s\n\nrequested fee award amounted to a 1.39 multiplier of the lodestar fee.\n\n The Isaacson/Weaver Family Trust filed an objection to Lead Counsel’s\n\nrequested award, arguing that Lead Counsel’s award should be reduced to the\n\nlodestar amount. No other class member objected to the settlement agreement or\n\nthe requested fee. The district court subsequently held a settlement fairness\n\nhearing where it heard argument on, among other things, Lead Counsel’s fee\n\nrequest. In a thorough and discerning opinion, the district court found that Lead\n\nCounsel’s requested fee was reasonable and granted the fee in full.\n\n DISCUSSION\n\n The parties primarily dispute the method by which a reasonable fee\n\nshould be calculated when class counsel settles claims brought pursuant to\n\nstatutes with fee‐shifting provisions by establishing a common settlement fund.\n\nThe Objector argues that, because the parties created the common fund to resolve\n\n\n 6\n\fclaims based on statutes with fee‐shifting provisions, the Supreme Court’s fee‐\n\nshifting jurisprudence applies, and Lead Counsel is presumptively entitled to\n\nonly the unenhanced lodestar fee. Lead Counsel disagrees, arguing that the\n\nsettlement that created the common fund resolved claims based on statutes that\n\ndo not have applicable fee‐shifting provisions, and regardless, the common‐fund\n\ndoctrine governs a district court’s award of attorneys’ fees when counsel has\n\nsecured a settlement fund for the benefit of the class. We make clear today what\n\nhas long been implicit in this Circuit’s jurisprudence: regardless of whether a\n\ncase is brought pursuant to a statute with a fee‐shifting provision, if the parties\n\nsettle the case by creating a common fund, common‐fund principles control class\n\ncounsel’s fee recovery. So concluding, we offer no opinion on whether the\n\nstatutes pursuant to which the underlying case arose contain applicable fee‐\n\nshifting provisions.\n\nI. Standard of Review\n\n “The Second Circuit reviews a district court’s decision to grant or deny an\n\naward of attorneys’ fees for abuse of discretion, reviewing de novo any rulings of\n\nlaw.” Flanagan, Lieberman, Hoffman & Swaim v. Ohio Pub. Emps. Ret. Sys., 814 F.3d\n\n\n 7\n\f652, 656 (2d Cir. 2016). Because the Objector has challenged the fee award based\n\non the district court’s ruling of law that Lead Counsel was entitled to a common‐\n\nfund fee award, our review is de novo.\n\nII. The American Rule and Its Exceptions\n\n In the American system of justice, “the prevailing litigant is ordinarily not\n\nentitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv.\n\nCo. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). There are two well‐known\n\nexceptions to this “American Rule”: (1) where Congress has specifically\n\nlegislated that the prevailing party may recover fees from the losing party, see\n\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 & n.3 (2010), and (2) where “a\n\nlitigant or a lawyer . . . recovers a common fund for the benefit of persons other\n\nthan himself or his client,” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).\n\nWhile in both instances an attorney is entitled to a recovery that is ultimately\n\nfinanced by the opposing party, the Supreme Court has placed greater\n\nrestrictions on attorneys’ fees recovered from statutory fee‐shifting provisions\n\nthan on fees recovered from common funds.\n\n\n\n\n 8\n\f When a statute’s fee‐shifting provision authorizes a reasonable attorneys’\n\nfee, the Supreme Court has held that “the lodestar method yields a fee that is\n\npresumptively sufficient.”2 Perdue, 559 U.S. at 552. Fee‐shifting provisions\n\ntypically encourage counsel to represent plaintiffs in actions where “Congress\n\nhas opted to rely heavily on private enforcement to implement public policy.”\n\nAlyeska Pipeline Serv. Co., 421 U.S. at 263. Where a litigant acts as a private\n\nattorney general, the goal of fee shifting is to provide “a fee that is sufficient to\n\ninduce a capable attorney to undertake the representation of a meritorious . . .\n\ncase.” Perdue, 559 U.S. at 552. The defendant effectively finances the private\n\nenforcement action against it as a component of its liability. See Alyeska Pipeline\n\nServ. Co., 421 U.S. at 253‐54 (quoting fee‐shifting provisions that refer to taxing\n\nthe opposing party for fees “incident to the judgment” (internal quotation marks\n\nomitted)).\n\n Notably, an unenhanced lodestar fee does not account for the contingent\n\nrisk that a lawyer may assume in taking on a case. See City of Burlington v. Dague,\n\n\n\n2The lodestar method calculates a given attorney’s fee by multiplying an\nattorney’s reasonable hourly rate by the number of hours that the attorney spent\non the case. Perdue, 559 U.S. at 546.\n 9\n\f505 U.S. 557, 562‐63 (1992); Pennsylvania v. Del. Valley Citizens’ Council for Clean\n\nAir (Del. Valley II), 483 U.S. 711, 724‐25 (1987). This makes particular sense where\n\nthe defendant shoulders the burden of fees because “[a]n attorney operating on a\n\ncontingency‐fee basis pools the risks presented by his various cases.” Dague, 505\n\nU.S. at 565. Therefore, “enhancing fees for risk of loss forces losing defendants to\n\ncompensate plaintiff’s lawyers for not prevailing against defendants in other\n\ncases.” Del. Valley II, 483 U.S. at 724‐25. The defendant, however, has no\n\nresponsibility to compensate an attorney for risk in the attorney’s other cases and\n\nwould be unfairly penalized if it were forced to subsidize an attorney’s other\n\nventures. Thus, where counsel receives a fee award pursuant to a fee‐shifting\n\nstatute authorizing a reasonable fee, we presume that the unenhanced lodestar is\n\na reasonable fee. Perdue, 559 U.S. at 552.\n\n In contrast to fees awarded pursuant to fee‐shifting provisions, fees\n\nawarded pursuant to the common‐fund doctrine do not extract a tax on the\n\nlosing party but instead confer a benefit on the victorious attorney for her\n\nrepresentation of her client and the class members. See Boeing, 444 U.S. at 478.\n\n“The doctrine rests on the perception that persons who obtain the benefit of a\n\n\n 10\n\flawsuit without contributing to its cost are unjustly enriched at the successful\n\nlitigant’s expense.” Id. The common‐fund doctrine is therefore rooted in the\n\ncourts’ “historic power of equity to permit” a person who secures a fund for the\n\nbenefit of others to collect a fee directly from the fund. Alyeska Pipeline Serv. Co.,\n\n421 U.S. at 257 (citing Trustees v. Greenough, 105 U.S. 527, 531‐33 (1881)). Under\n\nthe common‐fund doctrine, a district court may select “either the lodestar or\n\npercentage of the recovery methods” to calculate fees. Goldberger v. Integrated\n\nRes., Inc., 209 F.3d 43, 45 (2d Cir. 2000); see also McDaniel v. County of Schenectady,\n\n595 F.3d 411, 419 (2d Cir. 2010). A common‐fund‐percentage fee must still be\n\nevaluated for reasonableness, see, e.g., McDaniel, 595 F.3d at 423, but may exceed\n\nthe lodestar—i.e., it may be less than, equal to, or greater than the lodestar, see,\n\ne.g., Goldberger, 209 F.3d at 47.\n\n Accordingly, the means by which an attorney becomes entitled to a fee can\n\naffect the method used to calculate what a reasonable fee is. Subject always to the\n\ndistrict court’s discretion, an attorney seeking a fee after establishing statutory\n\nliability will presumptively receive a fee equal to the unenhanced lodestar, and\n\nan attorney seeking a fee after establishing a common fund will receive a fee\n\n\n 11\n\fcalculated using either the lodestar method or a percentage‐of‐the‐fund method,\n\nwhich can yield a fee that is less than, equal to, or greater than the lodestar fee.\n\nIII. Fee‐Shifting Statutes Do Not Circumscribe the Common‐Fund Doctrine\n\n Fee‐shifting principles and the common‐fund doctrine occupy separate\n\nrealms. In Alyeska Pipeline Service Co. v. Wilderness Society, the Court identified a\n\n“consistently followed” rule that fee‐shifting statutes do “not interfer[e] with the\n\nhistoric power of equity to permit . . . a party preserving or recovering a fund for\n\nthe benefit of others in addition to himself, to recover his costs, including his\n\nattorneys’ fees, from the fund . . . itself or directly from the other parties enjoying\n\nthe benefit.” 421 U.S. at 257. The Supreme Court therefore suggested that, even\n\nwhen statutory fees and the common‐fund doctrine collide, the common‐fund\n\ndoctrine operates autonomously from fee‐shifting principles.\n\n Our Circuit has followed suit. In County of Suffolk v. Long Island Lighting\n\nCo., this Court considered whether class counsel could be awarded fees from a\n\ncommon fund despite the fact that counsel would be entitled to statutory fees\n\nunder the Racketeer Influenced and Corrupt Organizations Act if it prevailed on\n\nappeal. 907 F.2d 1295, 1326‐27 (2d Cir. 1990). En route to deciding that class\n\n\n 12\n\fcounsel was entitled to fees for its significant work in bringing about a\n\nsettlement, we observed that “fee‐shifting statutes are generally not intended to\n\ncircumscribe the operation of the equitable fund doctrine.” Id. at 1327. An\n\nexception to this principle exists only if the equitable‐fund doctrine interferes\n\nwith a fee‐shifting statute’s purpose “to encourage the prosecution of certain\n\nfavored actions by private parties,” in which case the doctrine yields to the\n\nstatute. Id. We determined that, where a common fund results from the\n\ncommencement of a favored action, no such interference exists, and class counsel\n\nis entitled to fees under the common‐fund doctrine notwithstanding a statutory\n\nfee‐shifting provision. Id. at 1327‐28.\n\n In Goldberger v. Integrated Resources, Inc., we again obliquely addressed the\n\ncommon‐fund doctrine vis‐à‐vis statutory fee‐shifting principles. 209 F.3d 43.\n\nThere, we considered whether a securities class‐action settlement—settling\n\nclaims brought under Rule 10b‐5, id. at 45, one of the provisions at issue in this\n\ncase—could support an award of attorneys’ fees based on a percentage‐of‐the‐\n\nfund approach. Id. at 47. We noted that both the lodestar and the percentage‐of‐\n\nthe‐fund methods can yield a “reasonable attorneys’ fee” from a common‐fund\n\n\n 13\n\fsettlement. Id. at 47‐50; see also McDaniel, 595 F.3d at 419. The Court’s analysis\n\nforeshadowed our decision today: in rejecting counsel’s claim “that the district\n\ncourt erroneously relied on the strictures against risk multipliers in statutory fee‐\n\nshifting cases” when it awarded a lodestar fee in a common‐fund case, we noted\n\nthat “[c]ourts have held such strictures inapplicable to cases like this, where the\n\nlawyers seek fees from a common fund they won for plaintiffs.” Goldberger, 209\n\nF.3d at 54 n.3.\n\nIV. Our Sister Circuits Have Articulated Sound Rationale for Precluding the\n Application of Fee‐Shifting Principles to Common‐Fund Awards\n\n Our sister circuits have persuasively supported Goldberger’s\n\nunceremonious rejection of the suggestion that statutory fee‐shifting principles\n\ncurtail a district court’s discretion in common‐fund cases and have offered\n\ncompelling reasons why a common‐fund fee may differ from a statutory fee.\n\n The Ninth Circuit has held that “unless Congress has forbidden the\n\napplication of the common fund doctrine in cases in which attorneys could\n\npotentially recover fees under the type of fee‐shifting statutes at issue here, the\n\ncourts retain their equitable power to award common fund attorneys’ fees.”\n\nStaton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). The court reasoned that in\n\n 14\n\fnegotiating a settlement, “a defendant is interested only in disposing of the total\n\nclaim asserted against it.” Id. at 964 (internal quotation marks omitted).\n\nTherefore, “the allocation between the class payment and the attorneys’ fees is of\n\nlittle or no interest to the defense.” Id. (internal quotation marks omitted); see also\n\nGoldberger, 209 F.3d at 52‐53 (noting this principle in the context of parties’\n\nincentives to oppose a fee award).\n\n The settling defendant’s focus is on its bottom line, and once that bottom\n\nline has been inked, the defendant’s interest in how class members and class\n\ncounsel spend the settlement money dwindles. This is in stark contrast to fees\n\nawarded pursuant to a fee‐shifting statute, where as part of its liability and in\n\naddition to any monetary judgment, the defendant is forced to pay for the costs\n\nof the statute’s enforcement against it. Cf. Alyeska Pipeline Serv. Co., 421 U.S. at\n\n247‐54 (tracing the evolution of taxable costs against a defendant as an incident\n\nof the defendant’s liability). Therefore, where a statute shifts fees, we consider a\n\nreasonable fee with the defendant’s perspective in mind. See Del. Valley II, 483 U.S.\n\nat 724‐25 (rejecting contingency enhancement of lodestar fee after discussing the\n\nramifications of such an enhancement on defendants).\n\n\n 15\n\f In contrast, where an attorney has settled a case and created a common\n\nfund, we determine what a reasonable fee is from the plaintiff’s perspective.\n\nCritically, a reasonable fee from the plaintiff’s perspective can account for\n\ncontingency risk where such risk exists,3 and a common‐fund fee may therefore\n\nexceed what would be a “reasonable fee” in the fee‐shifting context. The Seventh\n\nCircuit has persuasively articulated why accounting for contingency risk can be\n\nappropriate when the plaintiff funds the fee but not when the defendant funds the\n\nfee. Assessing a fee that accounts for contingency risk against a defendant would\n\nrequire the defendant to “subsidiz[e] plaintiffs’ attorneys for unsuccessful\n\nlawsuits against other defendants.” Florin v. Nationsbank of Ga., N.A., 34 F.3d 560,\n\n565 (7th Cir. 1994). But “[i]n a common fund case, . . . because compensation for\n\nrisk is charged against the plaintiff class, defendants would not be forced to\n\nsubsidize directly plaintiffs’ attorneys’ losing endeavors.” Id. (emphasis added).\n\n\n\n\n3We note that it will not always be the case that an attorney representing a class\nassumes compensable contingency risk. A case may, for example, have such a\nhigh likelihood of being meritorious that compensation for contingency risk is\nunnecessary. See, e.g., Goldberger, 209 F.3d at 52 (noting that there is not “a\nsubstantial contingency risk in every common fund case” and cautioning against\ncalculating contingency risk into every percentage‐fee award).\n 16\n\f The plaintiff class is therefore appropriately charged for contingency risk\n\nwhere such risk is appreciable because the class has benefited from class\n\ncounsel’s decision to devote resources to the class’s cause at the expense of\n\ntaking other cases. That is, because class counsel has decided to represent the\n\nplaintiff class, class counsel’s ability to freely represent other clients is limited by\n\nthe risk she has assumed that the class’s cause will be unsuccessful. The class,\n\nhaving been enriched by counsel’s acceptance of its cause at the expense of other\n\nclients’ causes, may be charged for counsel’s assumption of risk on its behalf.\n\nConsistent with the reasoning and holding of the Ninth Circuit in Staton, the\n\nSeventh Circuit has therefore held that “common fund principles properly\n\ncontrol a case [that] is initiated under a statute with a fee‐shifting provision, but\n\nis settled with the creation of a common fund.” Id. at 564; see also Staton, 327 F.3d\n\nat 968.\n\nV. The Common‐Fund Doctrine Does Not Threaten to Misalign Counsel\n and Her Client’s Incentives\n\n In agreeing with the Seventh and Ninth Circuits, we decline to yield to the\n\nObjector’s contention that applying common‐fund principles to fee recoveries\n\nfrom cases initiated under fee‐shifting statutes will misalign attorneys’\n\n 17\n\fincentives. The Objector argues that allowing counsel to extract a percentage fee\n\nunder the common‐fund doctrine encourages counsel to settle cases early—even\n\nwhen her client’s best interests are served by prosecuting the claim to trial. We\n\nrecognize that both the lodestar methodology and the common‐fund\n\nmethodology provide imperfect solutions for aligning an attorney’s incentive to\n\nsettle with her client’s. McDaniel, 595 F.3d at 419 (“[N]either the lodestar nor the\n\npercentage‐of‐fund approach to awarding attorneys’ fees in common fund cases\n\nis without problems.”). We nonetheless do not share in the Objector’s concern\n\nthat the percentage‐fee approach will destroy class representation for two\n\nprimary reasons: first, a fee awarded under the common‐fund doctrine provides\n\nclass counsel with the incentive to maximize the settlement payout for the class\n\nbecause a larger settlement yields a proportionally larger fee; second, a district\n\ncourt is required to review class settlements and class counsel’s fees, providing\n\nan extra layer of security that class counsel will fairly and adequately represent\n\nthe class.\n\n As to the first reason, we have previously noted that “the percentage\n\nmethod has the advantage of aligning the interests of plaintiffs and their\n\n\n 18\n\fattorneys more fully by allowing the latter to share in both the upside and\n\ndownside risk of litigation.” Id. Thus, once the parties have agreed to settle, the\n\npercentage‐of‐the‐fund methodology serves as important motivation for counsel\n\nto maximize the class’s recovery, and, a fortiori, counsel’s fee.\n\n This incentive structure is critically important because, under the common‐\n\nfund doctrine, class counsel is not entitled to a common‐fund fee or an\n\nunenhanced lodestar fee by force of entering into a settlement agreement on the\n\nclass’s behalf. Rather, the district court retains discretion to determine which\n\nmethodology it will use to calculate class counsel’s reasonable fee. Goldberger, 209\n\nF.3d at 50 (“[W]e hold that both the lodestar and the percentage of the fund\n\nmethods are available to district judges in calculating attorneys’ fees in common\n\nfund cases.”). As such, class counsel cannot enter into a premature settlement\n\nconfident that it will receive a percentage‐of‐the‐fund fee that exceeds its lodestar\n\nfee. Since the district court alone makes the decision of how class counsel’s fee\n\nwill be calculated, class counsel’s safest bet for securing a large fee award is to\n\nprosecute the action until the point at which settlement is the best available\n\noption and thereafter maximize her client’s returns.\n\n\n 19\n\f As to the second reason that a percentage‐fee method is workable despite\n\nthe Objector’s concerns, we are comforted by the fact that a “court is to act as a\n\nfiduciary who must serve as a guardian of the rights of absent class members” in\n\nreviewing a class‐action settlement and a class fee award. Id. at 52 (internal\n\nquotation marks omitted). The Federal Rules of Civil Procedure require that\n\n“[t]he claims, issues, or defenses of a certified class—or a class proposed to be\n\ncertified for purposes of settlement—may be settled, voluntarily dismissed, or\n\ncompromised only with the court’s approval.” Fed. R. Civ. P. 23(e) (emphasis\n\nadded). Rule 23 requires the district court to hold a hearing and consider a\n\nnumber of factors to ensure that a proposed settlement “is fair, reasonable, and\n\nadequate,” id. 23(e)(2), and the court must specifically evaluate “the terms of any\n\nproposed award of attorney’s fees,” id. 23(e)(2)(C)(iii). Thus, the district court is\n\nrequired to review both the terms of the settlement and any fee award\n\nencompassed in a settlement agreement. This review provides a backstop that\n\nprevents unscrupulous counsel from quickly settling a class’s claims to cut a\n\ncheck.\n\n\n\n\n 20\n\f In addition to ex post facto review of fee awards, some district courts have\n\nelected to exercise their discretion to select and manage class counsel at the\n\noutset of the litigation. See Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 201 n.6\n\n(3d Cir. 2000) (“[D]istrict courts can avoid many of [the] complications associated\n\nwith fee awards by setting fee guidelines and ground rules early in the litigation\n\nprocess.”). One example of such an ex ante approach to selecting class counsel,\n\npopular in securities class actions, is for the district court to request that\n\nprospective class attorneys submit proposals regarding their qualifications,\n\npredictions for expected recovery, and their prospective fees. See In re Synthroid\n\nMktg. Litig., 264 F.3d 712, 720 (7th Cir. 2001). Thereafter, “[t]he judge in turn acts\n\nas an agent for the class, selecting the firm that seems likely to generate the\n\nhighest recovery net of attorneys’ fees.” Id.; see also Gunter, 223 F.3d at 201 n.6.\n\nPlacing the district court at the helm of class‐counsel selection allows the district\n\ncourt to actively consider class counsel’s performance while the litigation\n\nremains pending and is another means of monitoring fee awards.\n\n Further, if judicial review of class‐action settlements with a “searching\n\nassessment” of counsel’s fee award, McDaniel, 595 F.3d at 419 (internal quotation\n\n\n 21\n\fmarks omitted), were not solace enough for the Objector, we have also counseled\n\nthat the district court should use the lodestar as a “baseline” against which to\n\ncross‐check a percentage fee: “we encourage the practice of requiring\n\ndocumentation of hours as a ‘cross check’ on the reasonableness of the requested\n\npercentage,” Goldberger, 209 F.3d at 50. Thereafter, “the reasonableness of the\n\nclaimed lodestar can be tested by the court’s familiarity with the case.” Id. Fee\n\nrequests that deviate wildly from the unenhanced lodestar fee are unlikely to\n\npass this cross‐check, and district courts are at liberty to reduce the requested fee\n\nwithin their discretion.\n\n We thus have confidence in the district court as fiduciary of the class and\n\nultimate decisionmaker on a class‐action settlement to substantially alleviate the\n\nObjector’s concerns about class counsel’s incentives. Having obtained such\n\nreassurance, we hold that, where a class action results in a common‐fund\n\nsettlement for the benefit of the class, the common‐fund doctrine applies and\n\npermits a district court to use its discretion to award class counsel either an\n\nunenhanced lodestar fee or a fee calculated as a percentage of the settlement\n\nfund. This principle applies even when claims are initiated pursuant to a statute\n\n\n 22\n\fwith a fee‐shifting provision. Since the parties do not argue that the district court\n\nabused its discretion in analyzing the propriety of the fee award under the\n\ndiscretionary factors, we affirm the order of the district court.\n\n CONCLUSION\n\n The class, including the Objector, has benefited from Lead Counsel’s\n\nnegotiation of a common settlement fund. Because Lead Counsel’s fee is\n\nextracted directly from the beneficiaries of its work, Lead Counsel is entitled to\n\ncompensation not only for skillfully negotiating that settlement fund but for\n\nbearing the risk that the suit would not generate any recovery. Accordingly, even\n\nif the class’s claims were initiated under fee‐shifting statutes, common‐fund\n\nprinciples would govern, and the district court had the discretion to award Lead\n\nCounsel a fee equaling either the lodestar fee or a percentage of the fund. The\n\ndistrict court did not abuse its discretion when it determined that a percentage of\n\nthe fund reasonably compensated counsel. The district court’s order is hereby\n\nAFFIRMED.\n\n\n\n\n 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: FRESNO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Plaintiff-Appellee, v. ISAACSON/WEAVER FAMILY TRUST, Objector-Appellant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2662‐cv\\nFresno Cty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Family Tr.\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ____________________\\n\\n August Term, 2018\\n\\n(Argued: November 15, 2018 Decided: May 23, 2019)\\n\\n Docket No. 17‐2662\\n\\n ____________________\\n\\nFRESNO COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION,\\n\\n Plaintiff‐Appellee,\\n\\n v.\\n\\nISAACSON/WEAVER FAMILY TRUST,\\n\\n Objector‐Appellant.1\\n\\n ____________________\\n\\nBefore: JACOBS, POOLER, and WESLEY, Circuit Judges.\\n\\n The Isaacson/Weaver Family Trust appeals from the July 26, 2017, order of\\n\\nthe United States District Court for the Southern District of New York (Alison J.\\n\\n\\n\\n1 The Clerk of Court is directed to amend the caption as above.\\n\\fNathan, J.) granting Bernstein Litowitz Berger & Grossmann LLP’s request for a\\n\\npercentage fee awarded from the common settlement fund. The fee award was\\n\\ncompensation for the firm’s representation of a class of plaintiffs that settled\\n\\nfederal securities law claims against BioScrip, Inc. The Isaacson/Weaver Family\\n\\nTrust, a member of the class, objected to the fee award in the district court,\\n\\narguing that the class’s claims were brought pursuant to statutes containing fee‐\\n\\nshifting provisions and therefore class counsel’s fee award was presumptively\\n\\nlimited to the unenhanced lodestar (counsel’s hourly rate multiplied by the hours\\n\\nexpended on the case). The district court found this objection unavailing and\\n\\nruled that, because the parties’ settlement agreement provided for class counsel\\n\\nto be compensated from a common settlement fund, class counsel was entitled to\\n\\nfees under the equitable common‐fund doctrine rather than pursuant to a\\n\\nstatutory fee‐shifting provision. Under the common‐fund doctrine, the district\\n\\ncourt held that a percentage fee award was appropriate.\\n\\n On appeal, we conclude that, regardless of whether the claims settled here\\n\\nwere initiated under fee‐shifting statutes, the common‐fund doctrine properly\\n\\ncontrols the district court’s allocation of attorneys’ fees from a common\\n\\n\\n 2\\n\\fsettlement fund. This is because class plaintiffs have received the benefit of\\n\\ncounsel’s representation and assumption of the risk that the lawsuit will not\\n\\nrender a recovery, and thus the class may be fairly charged for counsel’s\\n\\nassumption of contingent risk. The district court was therefore entitled to\\n\\nexercise its discretion to award either a percentage‐of‐the‐fund fee or a lodestar\\n\\nfee to class counsel. We offer no opinion as to whether the claims settled here\\n\\nwere initiated under fee‐shifting statutes. Accordingly, we AFFIRM the order of\\n\\nthe district court.\\n\\n Affirmed.\\n\\n ____________________\\n\\n ERIC ALAN ISAACSON, La Jolla, CA, for Objector‐\\n Appellant.\\n\\n HANNAH G. ROSS, Bernstein Litowitz Berger &\\n Grossmann LLP (Jai Chandrasekhar, on the brief), New\\n York, NY, for Plaintiff‐Appellee.\\n\\nPOOLER, Circuit Judge:\\n\\n The objection of the Isaacson/Weaver Family Trust (the “Objector”) to\\n\\nBernstein Litowitz Berger & Grossmann LLP’s fee award raises a novel issue of\\n\\nthe proper principles for allocating fees awarded from a common‐fund\\n\\n 3\\n\\fsettlement. The Objector argues that, whenever an action is initiated under a\\n\\nstatute with a fee‐shifting provision, an attorney’s fee is presumptively limited to\\n\\nthe unenhanced lodestar fee, even if the action is settled by the creation of a\\n\\ncommon fund. Appellee argues that the contrary is true, claiming that, whenever\\n\\nan action is settled with the creation of a common fund, equitable principles\\n\\npermit the district court to award a fee that can be calculated using either the\\n\\nlodestar‐fee method or a percentage‐of‐the‐fund method. As Second Circuit case\\n\\nlaw has long implied, we hold that, even if a case is brought pursuant to a fee‐\\n\\nshifting statute, common‐fund principles control fee awards authorized from a\\n\\ncommon fund, and a common‐fund fee award may be calculated as the lodestar\\n\\nor as a percentage of the common fund. In so holding, we recognize the acute\\n\\ndifference between assessing a fee award against a defendant, who reaps no\\n\\nbenefit from an action brought against him, and requiring class members to\\n\\ncompensate counsel for representation that enriches the class. We AFFIRM the\\n\\nwell‐reasoned order of the district court finding that Bernstein Litowitz Berger &\\n\\nGrossmann LLP is entitled to its requested fee and expense award.\\n\\n\\n\\n\\n 4\\n\\f BACKGROUND\\n\\n This case is collateral litigation arising from the June 16, 2016, settlement of\\n\\na consolidated securities class action brought by shareholders of BioScrip, Inc.\\n\\nThe district court appointed Fresno County Employees’ Retirement Association\\n\\nas lead plaintiff and Bernstein Litowitz Berger & Grossmann LLP (“Lead\\n\\nCounsel”) as lead counsel for the action. The class sought to recover for two\\n\\nallegedly material misrepresentations that BioScrip, Inc. made and brought an\\n\\naction under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934;\\n\\nSecurities and Exchange Commission Rule 10b‐5; and Sections 11, 12(a)(2), and\\n\\n15 of the Securities Act of 1933.\\n\\n After the consolidated class‐action complaint largely survived a motion to\\n\\ndismiss and the case entered discovery, the parties agreed to settle all of the\\n\\naforementioned claims. The settlement called for the class‐action defendants to\\n\\npay $10,900,000 into a common fund in exchange for the class releasing all claims\\n\\nasserted against the defendants in the action. The settlement also provided that\\n\\n“Lead Counsel will apply to the Court for a collective award of attorneys’ fees to\\n\\nPlaintiffs’ Counsel to be paid solely from (and out of) the Settlement Fund.”\\n\\n\\n 5\\n\\fStipulation & Agreement of Settlement at 20, ¶ 19, Faig v. BioScrip, Inc., No. 13‐cv‐\\n\\n6922(AJN) (S.D.N.Y. Feb. 4, 2016), ECF No. 104‐5. Thereafter, Lead Counsel\\n\\nmoved for an award of attorneys’ fees of 25% of the settlement fund, totaling\\n\\n$2,725,000 plus interest, and an expense award of $133,565.28. Lead Counsel’s\\n\\nrequested fee award amounted to a 1.39 multiplier of the lodestar fee.\\n\\n The Isaacson/Weaver Family Trust filed an objection to Lead Counsel’s\\n\\nrequested award, arguing that Lead Counsel’s award should be reduced to the\\n\\nlodestar amount. No other class member objected to the settlement agreement or\\n\\nthe requested fee. The district court subsequently held a settlement fairness\\n\\nhearing where it heard argument on, among other things, Lead Counsel’s fee\\n\\nrequest. In a thorough and discerning opinion, the district court found that Lead\\n\\nCounsel’s requested fee was reasonable and granted the fee in full.\\n\\n DISCUSSION\\n\\n The parties primarily dispute the method by which a reasonable fee\\n\\nshould be calculated when class counsel settles claims brought pursuant to\\n\\nstatutes with fee‐shifting provisions by establishing a common settlement fund.\\n\\nThe Objector argues that, because the parties created the common fund to resolve\\n\\n\\n 6\\n\\fclaims based on statutes with fee‐shifting provisions, the Supreme Court’s fee‐\\n\\nshifting jurisprudence applies, and Lead Counsel is presumptively entitled to\\n\\nonly the unenhanced lodestar fee. Lead Counsel disagrees, arguing that the\\n\\nsettlement that created the common fund resolved claims based on statutes that\\n\\ndo not have applicable fee‐shifting provisions, and regardless, the common‐fund\\n\\ndoctrine governs a district court’s award of attorneys’ fees when counsel has\\n\\nsecured a settlement fund for the benefit of the class. We make clear today what\\n\\nhas long been implicit in this Circuit’s jurisprudence: regardless of whether a\\n\\ncase is brought pursuant to a statute with a fee‐shifting provision, if the parties\\n\\nsettle the case by creating a common fund, common‐fund principles control class\\n\\ncounsel’s fee recovery. So concluding, we offer no opinion on whether the\\n\\nstatutes pursuant to which the underlying case arose contain applicable fee‐\\n\\nshifting provisions.\\n\\nI. Standard of Review\\n\\n “The Second Circuit reviews a district court’s decision to grant or deny an\\n\\naward of attorneys’ fees for abuse of discretion, reviewing de novo any rulings of\\n\\nlaw.” Flanagan, Lieberman, Hoffman & Swaim v. Ohio Pub. Emps. Ret. Sys., 814 F.3d\\n\\n\\n 7\\n\\f652, 656 (2d Cir. 2016). Because the Objector has challenged the fee award based\\n\\non the district court’s ruling of law that Lead Counsel was entitled to a common‐\\n\\nfund fee award, our review is de novo.\\n\\nII. The American Rule and Its Exceptions\\n\\n In the American system of justice, “the prevailing litigant is ordinarily not\\n\\nentitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv.\\n\\nCo. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). There are two well‐known\\n\\nexceptions to this “American Rule”: (1) where Congress has specifically\\n\\nlegislated that the prevailing party may recover fees from the losing party, see\\n\\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 & n.3 (2010), and (2) where “a\\n\\nlitigant or a lawyer . . . recovers a common fund for the benefit of persons other\\n\\nthan himself or his client,” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).\\n\\nWhile in both instances an attorney is entitled to a recovery that is ultimately\\n\\nfinanced by the opposing party, the Supreme Court has placed greater\\n\\nrestrictions on attorneys’ fees recovered from statutory fee‐shifting provisions\\n\\nthan on fees recovered from common funds.\\n\\n\\n\\n\\n 8\\n\\f When a statute’s fee‐shifting provision authorizes a reasonable attorneys’\\n\\nfee, the Supreme Court has held that “the lodestar method yields a fee that is\\n\\npresumptively sufficient.”2 Perdue, 559 U.S. at 552. Fee‐shifting provisions\\n\\ntypically encourage counsel to represent plaintiffs in actions where “Congress\\n\\nhas opted to rely heavily on private enforcement to implement public policy.”\\n\\nAlyeska Pipeline Serv. Co., 421 U.S. at 263. Where a litigant acts as a private\\n\\nattorney general, the goal of fee shifting is to provide “a fee that is sufficient to\\n\\ninduce a capable attorney to undertake the representation of a meritorious . . .\\n\\ncase.” Perdue, 559 U.S. at 552. The defendant effectively finances the private\\n\\nenforcement action against it as a component of its liability. See Alyeska Pipeline\\n\\nServ. Co., 421 U.S. at 253‐54 (quoting fee‐shifting provisions that refer to taxing\\n\\nthe opposing party for fees “incident to the judgment” (internal quotation marks\\n\\nomitted)).\\n\\n Notably, an unenhanced lodestar fee does not account for the contingent\\n\\nrisk that a lawyer may assume in taking on a case. See City of Burlington v. Dague,\\n\\n\\n\\n2The lodestar method calculates a given attorney’s fee by multiplying an\\nattorney’s reasonable hourly rate by the number of hours that the attorney spent\\non the case. Perdue, 559 U.S. at 546.\\n 9\\n\\f505 U.S. 557, 562‐63 (1992); Pennsylvania v. Del. Valley Citizens’ Council for Clean\\n\\nAir (Del. Valley II), 483 U.S. 711, 724‐25 (1987). This makes particular sense where\\n\\nthe defendant shoulders the burden of fees because “[a]n attorney operating on a\\n\\ncontingency‐fee basis pools the risks presented by his various cases.” Dague, 505\\n\\nU.S. at 565. Therefore, “enhancing fees for risk of loss forces losing defendants to\\n\\ncompensate plaintiff’s lawyers for not prevailing against defendants in other\\n\\ncases.” Del. Valley II, 483 U.S. at 724‐25. The defendant, however, has no\\n\\nresponsibility to compensate an attorney for risk in the attorney’s other cases and\\n\\nwould be unfairly penalized if it were forced to subsidize an attorney’s other\\n\\nventures. Thus, where counsel receives a fee award pursuant to a fee‐shifting\\n\\nstatute authorizing a reasonable fee, we presume that the unenhanced lodestar is\\n\\na reasonable fee. Perdue, 559 U.S. at 552.\\n\\n In contrast to fees awarded pursuant to fee‐shifting provisions, fees\\n\\nawarded pursuant to the common‐fund doctrine do not extract a tax on the\\n\\nlosing party but instead confer a benefit on the victorious attorney for her\\n\\nrepresentation of her client and the class members. See Boeing, 444 U.S. at 478.\\n\\n“The doctrine rests on the perception that persons who obtain the benefit of a\\n\\n\\n 10\\n\\flawsuit without contributing to its cost are unjustly enriched at the successful\\n\\nlitigant’s expense.” Id. The common‐fund doctrine is therefore rooted in the\\n\\ncourts’ “historic power of equity to permit” a person who secures a fund for the\\n\\nbenefit of others to collect a fee directly from the fund. Alyeska Pipeline Serv. Co.,\\n\\n421 U.S. at 257 (citing Trustees v. Greenough, 105 U.S. 527, 531‐33 (1881)). Under\\n\\nthe common‐fund doctrine, a district court may select “either the lodestar or\\n\\npercentage of the recovery methods” to calculate fees. Goldberger v. Integrated\\n\\nRes., Inc., 209 F.3d 43, 45 (2d Cir. 2000); see also McDaniel v. County of Schenectady,\\n\\n595 F.3d 411, 419 (2d Cir. 2010). A common‐fund‐percentage fee must still be\\n\\nevaluated for reasonableness, see, e.g., McDaniel, 595 F.3d at 423, but may exceed\\n\\nthe lodestar—i.e., it may be less than, equal to, or greater than the lodestar, see,\\n\\ne.g., Goldberger, 209 F.3d at 47.\\n\\n Accordingly, the means by which an attorney becomes entitled to a fee can\\n\\naffect the method used to calculate what a reasonable fee is. Subject always to the\\n\\ndistrict court’s discretion, an attorney seeking a fee after establishing statutory\\n\\nliability will presumptively receive a fee equal to the unenhanced lodestar, and\\n\\nan attorney seeking a fee after establishing a common fund will receive a fee\\n\\n\\n 11\\n\\fcalculated using either the lodestar method or a percentage‐of‐the‐fund method,\\n\\nwhich can yield a fee that is less than, equal to, or greater than the lodestar fee.\\n\\nIII. Fee‐Shifting Statutes Do Not Circumscribe the Common‐Fund Doctrine\\n\\n Fee‐shifting principles and the common‐fund doctrine occupy separate\\n\\nrealms. In Alyeska Pipeline Service Co. v. Wilderness Society, the Court identified a\\n\\n“consistently followed” rule that fee‐shifting statutes do “not interfer[e] with the\\n\\nhistoric power of equity to permit . . . a party preserving or recovering a fund for\\n\\nthe benefit of others in addition to himself, to recover his costs, including his\\n\\nattorneys’ fees, from the fund . . . itself or directly from the other parties enjoying\\n\\nthe benefit.” 421 U.S. at 257. The Supreme Court therefore suggested that, even\\n\\nwhen statutory fees and the common‐fund doctrine collide, the common‐fund\\n\\ndoctrine operates autonomously from fee‐shifting principles.\\n\\n Our Circuit has followed suit. In County of Suffolk v. Long Island Lighting\\n\\nCo., this Court considered whether class counsel could be awarded fees from a\\n\\ncommon fund despite the fact that counsel would be entitled to statutory fees\\n\\nunder the Racketeer Influenced and Corrupt Organizations Act if it prevailed on\\n\\nappeal. 907 F.2d 1295, 1326‐27 (2d Cir. 1990). En route to deciding that class\\n\\n\\n 12\\n\\fcounsel was entitled to fees for its significant work in bringing about a\\n\\nsettlement, we observed that “fee‐shifting statutes are generally not intended to\\n\\ncircumscribe the operation of the equitable fund doctrine.” Id. at 1327. An\\n\\nexception to this principle exists only if the equitable‐fund doctrine interferes\\n\\nwith a fee‐shifting statute’s purpose “to encourage the prosecution of certain\\n\\nfavored actions by private parties,” in which case the doctrine yields to the\\n\\nstatute. Id. We determined that, where a common fund results from the\\n\\ncommencement of a favored action, no such interference exists, and class counsel\\n\\nis entitled to fees under the common‐fund doctrine notwithstanding a statutory\\n\\nfee‐shifting provision. Id. at 1327‐28.\\n\\n In Goldberger v. Integrated Resources, Inc., we again obliquely addressed the\\n\\ncommon‐fund doctrine vis‐à‐vis statutory fee‐shifting principles. 209 F.3d 43.\\n\\nThere, we considered whether a securities class‐action settlement—settling\\n\\nclaims brought under Rule 10b‐5, id. at 45, one of the provisions at issue in this\\n\\ncase—could support an award of attorneys’ fees based on a percentage‐of‐the‐\\n\\nfund approach. Id. at 47. We noted that both the lodestar and the percentage‐of‐\\n\\nthe‐fund methods can yield a “reasonable attorneys’ fee” from a common‐fund\\n\\n\\n 13\\n\\fsettlement. Id. at 47‐50; see also McDaniel, 595 F.3d at 419. The Court’s analysis\\n\\nforeshadowed our decision today: in rejecting counsel’s claim “that the district\\n\\ncourt erroneously relied on the strictures against risk multipliers in statutory fee‐\\n\\nshifting cases” when it awarded a lodestar fee in a common‐fund case, we noted\\n\\nthat “[c]ourts have held such strictures inapplicable to cases like this, where the\\n\\nlawyers seek fees from a common fund they won for plaintiffs.” Goldberger, 209\\n\\nF.3d at 54 n.3.\\n\\nIV. Our Sister Circuits Have Articulated Sound Rationale for Precluding the\\n Application of Fee‐Shifting Principles to Common‐Fund Awards\\n\\n Our sister circuits have persuasively supported Goldberger’s\\n\\nunceremonious rejection of the suggestion that statutory fee‐shifting principles\\n\\ncurtail a district court’s discretion in common‐fund cases and have offered\\n\\ncompelling reasons why a common‐fund fee may differ from a statutory fee.\\n\\n The Ninth Circuit has held that “unless Congress has forbidden the\\n\\napplication of the common fund doctrine in cases in which attorneys could\\n\\npotentially recover fees under the type of fee‐shifting statutes at issue here, the\\n\\ncourts retain their equitable power to award common fund attorneys’ fees.”\\n\\nStaton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). The court reasoned that in\\n\\n 14\\n\\fnegotiating a settlement, “a defendant is interested only in disposing of the total\\n\\nclaim asserted against it.” Id. at 964 (internal quotation marks omitted).\\n\\nTherefore, “the allocation between the class payment and the attorneys’ fees is of\\n\\nlittle or no interest to the defense.” Id. (internal quotation marks omitted); see also\\n\\nGoldberger, 209 F.3d at 52‐53 (noting this principle in the context of parties’\\n\\nincentives to oppose a fee award).\\n\\n The settling defendant’s focus is on its bottom line, and once that bottom\\n\\nline has been inked, the defendant’s interest in how class members and class\\n\\ncounsel spend the settlement money dwindles. This is in stark contrast to fees\\n\\nawarded pursuant to a fee‐shifting statute, where as part of its liability and in\\n\\naddition to any monetary judgment, the defendant is forced to pay for the costs\\n\\nof the statute’s enforcement against it. Cf. Alyeska Pipeline Serv. Co., 421 U.S. at\\n\\n247‐54 (tracing the evolution of taxable costs against a defendant as an incident\\n\\nof the defendant’s liability). Therefore, where a statute shifts fees, we consider a\\n\\nreasonable fee with the defendant’s perspective in mind. See Del. Valley II, 483 U.S.\\n\\nat 724‐25 (rejecting contingency enhancement of lodestar fee after discussing the\\n\\nramifications of such an enhancement on defendants).\\n\\n\\n 15\\n\\f In contrast, where an attorney has settled a case and created a common\\n\\nfund, we determine what a reasonable fee is from the plaintiff’s perspective.\\n\\nCritically, a reasonable fee from the plaintiff’s perspective can account for\\n\\ncontingency risk where such risk exists,3 and a common‐fund fee may therefore\\n\\nexceed what would be a “reasonable fee” in the fee‐shifting context. The Seventh\\n\\nCircuit has persuasively articulated why accounting for contingency risk can be\\n\\nappropriate when the plaintiff funds the fee but not when the defendant funds the\\n\\nfee. Assessing a fee that accounts for contingency risk against a defendant would\\n\\nrequire the defendant to “subsidiz[e] plaintiffs’ attorneys for unsuccessful\\n\\nlawsuits against other defendants.” Florin v. Nationsbank of Ga., N.A., 34 F.3d 560,\\n\\n565 (7th Cir. 1994). But “[i]n a common fund case, . . . because compensation for\\n\\nrisk is charged against the plaintiff class, defendants would not be forced to\\n\\nsubsidize directly plaintiffs’ attorneys’ losing endeavors.” Id. (emphasis added).\\n\\n\\n\\n\\n3We note that it will not always be the case that an attorney representing a class\\nassumes compensable contingency risk. A case may, for example, have such a\\nhigh likelihood of being meritorious that compensation for contingency risk is\\nunnecessary. See, e.g., Goldberger, 209 F.3d at 52 (noting that there is not “a\\nsubstantial contingency risk in every common fund case” and cautioning against\\ncalculating contingency risk into every percentage‐fee award).\\n 16\\n\\f The plaintiff class is therefore appropriately charged for contingency risk\\n\\nwhere such risk is appreciable because the class has benefited from class\\n\\ncounsel’s decision to devote resources to the class’s cause at the expense of\\n\\ntaking other cases. That is, because class counsel has decided to represent the\\n\\nplaintiff class, class counsel’s ability to freely represent other clients is limited by\\n\\nthe risk she has assumed that the class’s cause will be unsuccessful. The class,\\n\\nhaving been enriched by counsel’s acceptance of its cause at the expense of other\\n\\nclients’ causes, may be charged for counsel’s assumption of risk on its behalf.\\n\\nConsistent with the reasoning and holding of the Ninth Circuit in Staton, the\\n\\nSeventh Circuit has therefore held that “common fund principles properly\\n\\ncontrol a case [that] is initiated under a statute with a fee‐shifting provision, but\\n\\nis settled with the creation of a common fund.” Id. at 564; see also Staton, 327 F.3d\\n\\nat 968.\\n\\nV. The Common‐Fund Doctrine Does Not Threaten to Misalign Counsel\\n and Her Client’s Incentives\\n\\n In agreeing with the Seventh and Ninth Circuits, we decline to yield to the\\n\\nObjector’s contention that applying common‐fund principles to fee recoveries\\n\\nfrom cases initiated under fee‐shifting statutes will misalign attorneys’\\n\\n 17\\n\\fincentives. The Objector argues that allowing counsel to extract a percentage fee\\n\\nunder the common‐fund doctrine encourages counsel to settle cases early—even\\n\\nwhen her client’s best interests are served by prosecuting the claim to trial. We\\n\\nrecognize that both the lodestar methodology and the common‐fund\\n\\nmethodology provide imperfect solutions for aligning an attorney’s incentive to\\n\\nsettle with her client’s. McDaniel, 595 F.3d at 419 (“[N]either the lodestar nor the\\n\\npercentage‐of‐fund approach to awarding attorneys’ fees in common fund cases\\n\\nis without problems.”). We nonetheless do not share in the Objector’s concern\\n\\nthat the percentage‐fee approach will destroy class representation for two\\n\\nprimary reasons: first, a fee awarded under the common‐fund doctrine provides\\n\\nclass counsel with the incentive to maximize the settlement payout for the class\\n\\nbecause a larger settlement yields a proportionally larger fee; second, a district\\n\\ncourt is required to review class settlements and class counsel’s fees, providing\\n\\nan extra layer of security that class counsel will fairly and adequately represent\\n\\nthe class.\\n\\n As to the first reason, we have previously noted that “the percentage\\n\\nmethod has the advantage of aligning the interests of plaintiffs and their\\n\\n\\n 18\\n\\fattorneys more fully by allowing the latter to share in both the upside and\\n\\ndownside risk of litigation.” Id. Thus, once the parties have agreed to settle, the\\n\\npercentage‐of‐the‐fund methodology serves as important motivation for counsel\\n\\nto maximize the class’s recovery, and, a fortiori, counsel’s fee.\\n\\n This incentive structure is critically important because, under the common‐\\n\\nfund doctrine, class counsel is not entitled to a common‐fund fee or an\\n\\nunenhanced lodestar fee by force of entering into a settlement agreement on the\\n\\nclass’s behalf. Rather, the district court retains discretion to determine which\\n\\nmethodology it will use to calculate class counsel’s reasonable fee. Goldberger, 209\\n\\nF.3d at 50 (“[W]e hold that both the lodestar and the percentage of the fund\\n\\nmethods are available to district judges in calculating attorneys’ fees in common\\n\\nfund cases.”). As such, class counsel cannot enter into a premature settlement\\n\\nconfident that it will receive a percentage‐of‐the‐fund fee that exceeds its lodestar\\n\\nfee. Since the district court alone makes the decision of how class counsel’s fee\\n\\nwill be calculated, class counsel’s safest bet for securing a large fee award is to\\n\\nprosecute the action until the point at which settlement is the best available\\n\\noption and thereafter maximize her client’s returns.\\n\\n\\n 19\\n\\f As to the second reason that a percentage‐fee method is workable despite\\n\\nthe Objector’s concerns, we are comforted by the fact that a “court is to act as a\\n\\nfiduciary who must serve as a guardian of the rights of absent class members” in\\n\\nreviewing a class‐action settlement and a class fee award. Id. at 52 (internal\\n\\nquotation marks omitted). The Federal Rules of Civil Procedure require that\\n\\n“[t]he claims, issues, or defenses of a certified class—or a class proposed to be\\n\\ncertified for purposes of settlement—may be settled, voluntarily dismissed, or\\n\\ncompromised only with the court’s approval.” Fed. R. Civ. P. 23(e) (emphasis\\n\\nadded). Rule 23 requires the district court to hold a hearing and consider a\\n\\nnumber of factors to ensure that a proposed settlement “is fair, reasonable, and\\n\\nadequate,” id. 23(e)(2), and the court must specifically evaluate “the terms of any\\n\\nproposed award of attorney’s fees,” id. 23(e)(2)(C)(iii). Thus, the district court is\\n\\nrequired to review both the terms of the settlement and any fee award\\n\\nencompassed in a settlement agreement. This review provides a backstop that\\n\\nprevents unscrupulous counsel from quickly settling a class’s claims to cut a\\n\\ncheck.\\n\\n\\n\\n\\n 20\\n\\f In addition to ex post facto review of fee awards, some district courts have\\n\\nelected to exercise their discretion to select and manage class counsel at the\\n\\noutset of the litigation. See Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 201 n.6\\n\\n(3d Cir. 2000) (“[D]istrict courts can avoid many of [the] complications associated\\n\\nwith fee awards by setting fee guidelines and ground rules early in the litigation\\n\\nprocess.”). One example of such an ex ante approach to selecting class counsel,\\n\\npopular in securities class actions, is for the district court to request that\\n\\nprospective class attorneys submit proposals regarding their qualifications,\\n\\npredictions for expected recovery, and their prospective fees. See In re Synthroid\\n\\nMktg. Litig., 264 F.3d 712, 720 (7th Cir. 2001). Thereafter, “[t]he judge in turn acts\\n\\nas an agent for the class, selecting the firm that seems likely to generate the\\n\\nhighest recovery net of attorneys’ fees.” Id.; see also Gunter, 223 F.3d at 201 n.6.\\n\\nPlacing the district court at the helm of class‐counsel selection allows the district\\n\\ncourt to actively consider class counsel’s performance while the litigation\\n\\nremains pending and is another means of monitoring fee awards.\\n\\n Further, if judicial review of class‐action settlements with a “searching\\n\\nassessment” of counsel’s fee award, McDaniel, 595 F.3d at 419 (internal quotation\\n\\n\\n 21\\n\\fmarks omitted), were not solace enough for the Objector, we have also counseled\\n\\nthat the district court should use the lodestar as a “baseline” against which to\\n\\ncross‐check a percentage fee: “we encourage the practice of requiring\\n\\ndocumentation of hours as a ‘cross check’ on the reasonableness of the requested\\n\\npercentage,” Goldberger, 209 F.3d at 50. Thereafter, “the reasonableness of the\\n\\nclaimed lodestar can be tested by the court’s familiarity with the case.” Id. Fee\\n\\nrequests that deviate wildly from the unenhanced lodestar fee are unlikely to\\n\\npass this cross‐check, and district courts are at liberty to reduce the requested fee\\n\\nwithin their discretion.\\n\\n We thus have confidence in the district court as fiduciary of the class and\\n\\nultimate decisionmaker on a class‐action settlement to substantially alleviate the\\n\\nObjector’s concerns about class counsel’s incentives. Having obtained such\\n\\nreassurance, we hold that, where a class action results in a common‐fund\\n\\nsettlement for the benefit of the class, the common‐fund doctrine applies and\\n\\npermits a district court to use its discretion to award class counsel either an\\n\\nunenhanced lodestar fee or a fee calculated as a percentage of the settlement\\n\\nfund. This principle applies even when claims are initiated pursuant to a statute\\n\\n\\n 22\\n\\fwith a fee‐shifting provision. Since the parties do not argue that the district court\\n\\nabused its discretion in analyzing the propriety of the fee award under the\\n\\ndiscretionary factors, we affirm the order of the district court.\\n\\n CONCLUSION\\n\\n The class, including the Objector, has benefited from Lead Counsel’s\\n\\nnegotiation of a common settlement fund. Because Lead Counsel’s fee is\\n\\nextracted directly from the beneficiaries of its work, Lead Counsel is entitled to\\n\\ncompensation not only for skillfully negotiating that settlement fund but for\\n\\nbearing the risk that the suit would not generate any recovery. Accordingly, even\\n\\nif the class’s claims were initiated under fee‐shifting statutes, common‐fund\\n\\nprinciples would govern, and the district court had the discretion to award Lead\\n\\nCounsel a fee equaling either the lodestar fee or a percentage of the fund. The\\n\\ndistrict court did not abuse its discretion when it determined that a percentage of\\n\\nthe fund reasonably compensated counsel. The district court’s order is hereby\\n\\nAFFIRMED.\\n\\n\\n\\n\\n 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1992,"cells":{"id":{"kind":"number","value":4623032,"string":"4,623,032"},"name":{"kind":"string","value":"Michelet CHARLES, Carol Small, Plaintiffs-Appellants, v. ORANGE COUNTY, State of New York, Orange County Sheriff's Department, Orange County Department of Mental Health, Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendants-Appellees, Nicole Kaye, Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendant."},"name_abbreviation":{"kind":"string","value":"Charles v. Orange County"},"decision_date":{"kind":"string","value":"2019-05-24"},"docket_number":{"kind":"string","value":"17-3506-pr; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Hall, Bolden\", \"parties\": \"\", \"opinions\": [{\"author\": \"GERARD E. LYNCH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-3506-pr\\nCharles v. Orange County\\n\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n\\n August Term, 2018\\n\\n Argued: September 25, 2018\\n Decided: May 24, 2019\\n\\n No. 17-3506-pr\\n\\n\\n\\n MICHELET CHARLES, CAROL SMALL,\\n\\n Plaintiffs-Appellants,\\n\\n — v. —\\n\\n ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT,\\n ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, CARMEN ELIZONDO, FORMER\\n CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual\\n capacity,\\n\\n Defendants-Appellees,\\n\\n NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her\\n individual capacity,\\n\\n Defendant.\\n\\fB e f o r e:\\n\\n LYNCH and HALL, Circuit Judges, and BOLDEN, District Judge.*\\n\\n\\n\\n\\n Plaintiffs-Appellants Michelet Charles and Carol Small were formerly civil\\nimmigration detainees at the Orange County Correctional Facility, where they\\nwere treated for serious mental illnesses. They instituted this civil rights action\\nagainst Orange County and some of its agencies and officials under 42 U.S.C.\\n§ 1983, complaining that the failure to engage in discharge planning or to provide\\nthem with discharge plans upon release violated their substantive due process\\nrights under the Fourteenth Amendment. The United States District Court for the\\nSouthern District of New York (Nelson S. Román, J.) granted the Defendants’\\nmotion to dismiss the complaint. We VACATE and REMAND for further\\nproceedings.\\n\\n\\n\\n DANIEL J. STUJENSKE, Simpson Thacher & Bartlett LLP, New\\n York, NY (Thomas C. Rice, Simpson Thacher & Bartlett\\n LLP, on the brief), Laura F. Redman, Antony P. F. Gemmell,\\n New York Lawyers for the Public Interest, New York, NY\\n for Plaintiffs-Appellants Michelet Charles and Carol Small.\\n\\n ANTHONY CARDOSO, Orange County Attorney’s Office, Goshen,\\n NY, for Defendants-Appellees Orange County, State of\\n New York, Orange County Sheriff’s Department, Orange\\n County Department of Mental Health and Carmen\\n Elizondo, Former Clinic Director, Orange County\\n Correctional Facility, in her individual capacity.\\n\\n\\n*\\n Judge Victor A. Bolden, of the United States District Court for the District of\\nConnecticut, sitting by designation.\\n\\n 2\\n\\fAaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick,\\n P.L.L.C., Washington, DC (Ira A. Burnim, Judge David C.\\n Bazelon Center for Mental Health Law, Washington, DC,\\n on the brief), for Amici Curiae American Psychiatric\\n Association, American Academy of Psychiatry and the\\n Law, American Psychological Association, American\\n Medical Association, National Association of Social\\n Workers, American Public Health Association, and Judge\\n David L. Bazelon Center for Mental Health Law, in\\n support of Plaintiffs-Appellants.\\n\\nJamie A. Levitt, Morrison & Foerster LLP, New York, NY, for\\n Amici Curiae The Bronx Defenders, Brooklyn Defender\\n Services, Community Initiatives for Visiting Immigrants\\n in Confinement, Detention Watch Network, The Florida\\n Justice Institute, Inc., Human Rights First, Immigrant\\n Defense Project, The Immigrant Rights Clinic of\\n Washington Square Legal Services, Inc., at NYU Law\\n School, the Kathryn O. Greenberg Immigration Justice\\n Clinic at the Benjamin N. Cardozo School of Law, The\\n Legal Aid Society of New York, The Prison Law Office,\\n Prisoners’ Legal Services of New York, and the Urban\\n Justice Center Mental Health Project, in support of\\n Plaintiffs-Appellants.\\n\\nAlexander M. Wilson, New York State Sheriffs’ Association,\\n Albany, NY for Amicus Curiae New York State Sheriffs’\\n Association, in support of Defendants-Appellees.\\n\\n\\n\\n\\n 3\\n\\fGERARD E. LYNCH, Circuit Judge:\\n\\n The question before us is whether the Plaintiffs-Appellants, Michelet\\n\\nCharles and Carol Small, have stated a plausible claim for relief under the\\n\\nFourteenth Amendment for deliberate indifference to their serious medical\\n\\nneeds. Plaintiffs were confined for many months as civil immigration detainees at\\n\\nthe Orange County Correctional Facility, where they received treatment for their\\n\\nserious mental health disorders. Defendants-Appellees are Orange County, the\\n\\nmunicipality that oversees the Orange County Correctional Facility (“the Jail”);\\n\\nthe Orange County Sheriff’s Office, the specific entity that contracts with the\\n\\nFederal Government to house detainees in the Jail; the Orange County\\n\\nDepartment of Mental Health, the agency responsible for providing mental\\n\\nhealth services to people confined at the Jail; and Carmen Elizondo, the Clinical\\n\\nDirector at the Jail.1 Plaintiffs filed a complaint in the United States District Court\\n\\nfor the Southern District of New York alleging that the Defendants, who were\\n\\nresponsible for providing them with medical care while they were detained at the\\n\\nJail, failed to provide them with mental health discharge planning before their\\n\\n\\n\\n1\\n The parties stipulated to the dismissal of this appeal with prejudice with respect\\nto former defendant Nicole Kaye.\\n\\n 4\\n\\frelease from custody, in violation of the Fourteenth Amendment’s Due Process\\n\\nClause. Plaintiffs seek relief under 42 U.S.C. § 1983.\\n\\n The district court (Nelson S. Román, J.) dismissed Plaintiffs’ complaint for\\n\\nfailure to state a claim. For the reasons that follow, we VACATE that judgment,\\n\\nand REMAND for further proceedings.\\n\\n BACKGROUND\\n\\n Both Plaintiffs suffer from serious, ongoing mental illnesses.2 Each Plaintiff\\n\\nwas arrested by agents of the U.S. Immigration and Customs Enforcement\\n\\n(“ICE”), the federal law enforcement agency charged with the detention and\\n\\nremoval of illegal immigrants. While awaiting their removal proceedings,\\n\\nPlaintiffs were detained at the Jail, a county detention facility that houses civil\\n\\nimmigration detainees pursuant to an intergovernmental agreement between ICE\\n\\nand Orange County. During their detention, Plaintiffs were treated for their\\n\\nillnesses, receiving counseling and psychotropic medication. However, the\\n\\ntreatment Plaintiffs received while they were in custody did not include\\n\\n\\n\\n\\n2\\n On this appeal from the dismissal of a complaint for failure to state a claim, we\\ntake the allegations in the complaint as true and construe them in the light most\\nfavorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009).\\n\\n 5\\n\\fdischarge planning, which Plaintiffs allege is a routine and necessary component\\n\\nof institutional mental health treatment. Plaintiffs claim that as a result of\\n\\nDefendants’ failure to provide them with discharge planning while they were in\\n\\ncustody, they suffered serious mental health consequences shortly after their\\n\\nrelease.\\n\\nI. Michelet Charles\\n\\n Plaintiff Michelet Charles is a 55-year old lawful permanent resident who\\n\\nhas lived in the United States for 34 years. Charles has suffered from bipolar and\\n\\nschizoaffective disorders since around 1984. For years, he managed his illness\\n\\nthrough regular mental health care. When Charles is not treated for his illnesses,\\n\\nhe suffers from hallucinations, delusions, and periods of mania and depression.\\n\\n In July 2014, Charles was arrested by ICE officials and detained at the Jail\\n\\nfor 363 days during the pendency of his immigration case.3 When Charles\\n\\n\\n\\n\\n3\\n ICE and Orange County confine hundreds of people in civil immigration\\ndetention at the Orange County Detention Center every year pursuant to an\\nInter-Governmental Services Agreement between ICE and Orange County. Civil\\nimmigration detainees are held in custody to assure their presence throughout\\nthe administrative removal proceedings. Such detainees are not charged with\\ncrimes. Nevertheless, civil immigration detainees are housed in conditions\\nsimilar to those experienced by detainees awaiting trial on criminal charges.\\n\\n 6\\n\\fentered the detention center, medical personnel at the facility diagnosed him\\n\\nwith bipolar disorder with psychotic features. During his detention, Defendants\\n\\nprovided Charles with psychiatric care, which included meeting with a\\n\\npsychiatrist every three weeks in order to monitor his condition, and daily\\n\\npsychotropic medication to keep him stable. Charles’s treatment was\\n\\ndocumented by the Jail Clinic in an “Intervention/Care Plan” which listed his\\n\\ndiagnosis, the types of counseling Charles received, the medication he required,\\n\\nand any suicidal or harmful tendencies he had.\\n\\n On July 22, 2015, Charles was brought from the Jail to New York City for\\n\\nan appearance at the Immigration Court in lower Manhattan. Prior to his\\n\\nimmigration hearing, Defendants had not provided Charles with any plan for his\\n\\ncontinued mental health care after discharge, a list of his medications, a list of\\n\\noutside referrals, any other information about the medication and counseling he\\n\\nreceived while detained, or assistance or information relevant to his obtaining\\n\\nfuture treatment for his known medical condition. Nor were any such materials\\n\\nprovided to Charles at or after his hearing. Charles succeeded at his immigration\\n\\nhearing4 and was released directly from the court with his identification and\\n\\n4\\n The record does not reflect the precise disposition of the matter.\\n\\n 7\\n\\fnothing more. The ICE Deportation Officer who attended the hearing told\\n\\nCharles’s attorney that ICE did not have any medication for Charles, and that he\\n\\nshould return to the Jail if he needed to obtain a supply of his medication.\\n\\n The day after his release, Charles and his daughter drove over 65 miles\\n\\nfrom their home to the Jail to obtain Charles’s psychiatric medication. When\\n\\nCharles’s daughter asked an employee at the front desk of the Jail for her father’s\\n\\nmedication, the employee refused to provide it, claiming that the person who had\\n\\ntransported Charles to the Immigration Court was responsible for providing him\\n\\nwith a continuing supply of medication. The Orange County employee also\\n\\ninformed Charles and his daughter that as a matter of institutional policy, after a\\n\\nperson is released from the facility, the Jail can no longer provide him with\\n\\nmedication.\\n\\n Charles’s immigration attorney then contacted the ICE Deportation Officer\\n\\nagain, requesting that Charles be provided with a supply of medication. The\\n\\nOfficer did not respond to the inquiry. According to Charles’s medical file from\\n\\nthe Jail, on July 23, 2015, the day after his release, and the same day that he\\n\\nvisited the facility with his daughter, a clinical social worker at the Jail signed a\\n\\ndocument entitled “Continuing Care Plan/Discharge Summary” (“Discharge\\n\\n\\n 8\\n\\fSummary”) for Charles. The Discharge Summary listed Charles’ diagnosis and\\n\\nexpressly anticipated that Charles would have future mental health needs\\n\\nincluding medication, psychiatric treatment, and substance abuse treatment.\\n\\nHowever, neither Charles nor his attorney was given a copy of the Discharge\\n\\nSummary.\\n\\n After his release, without immediate access to his prescription anti-\\n\\npsychotic and anti-depressant medications and counseling, Charles soon began\\n\\npsychologically decompensating. He exhibited bizarre behavior, was\\n\\ndisorganized, and mumbled when he spoke. His family reported that he was\\n\\nmanic, anxious, and paranoid.\\n\\n By August 4, 2015, Charles was experiencing symptoms of psychosis, and\\n\\nhis ability to control his thoughts and emotions was so impaired that he lost\\n\\ncontact with reality. On that date, Charles’s family called 911 for emergency\\n\\nmedical assistance. The police officers who responded to the call transported him\\n\\nto the emergency room at a nearby hospital. The next day, Charles was\\n\\nhospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks\\n\\nHospital. His admission record states that he had worsening aggressive,\\n\\ndisorganized, and bizarre behavior, and was preoccupied with paranoid ideas. It\\n\\n\\n 9\\n\\ftook two months in the hospital for Charles’s condition to stabilize and for him to\\n\\nreturn to his baseline mental state.\\n\\nII. Carol Small\\n\\n Plaintiff Carol Small is a 45-year old lawful permanent resident of the\\n\\nUnited States. Before she was detained, Small lived on her own and supported\\n\\nherself as a hairdresser in the Bronx.\\n\\n Small was detained at the Jail in May 2015. After about a month of\\n\\ndetention, Small began experiencing symptoms of severe mental illness,\\n\\nincluding visual and auditory hallucinations. She became extremely paranoid\\n\\nand delusional, believing that she was being monitored by the government\\n\\nthrough a chip implanted in her tooth, that there was a government conspiracy to\\n\\npoison her, and that poison was coming through the vents in the Jail. In late June\\n\\n2015, a psychiatrist at the Jail diagnosed Small with paranoid schizophrenia.\\n\\nSimilarly to Charles, her diagnosis, medications, and counseling needs were\\n\\ndocumented by the Jail Clinic in a document titled “Intervention/Care Plan.” But\\n\\nlike Charles, Small was not provided with a copy of that document.\\n\\n In September 2015, Small was transferred to the inpatient ward at Kings\\n\\nCounty Hospital for intensive treatment for her mental illness. In October, after\\n\\n\\n 10\\n\\fher condition stabilized, she was transferred back to the Jail. Upon her return,\\n\\nmedical employees of the Orange County Department of Mental Health provided\\n\\nSmall with medically necessary treatment and continued to prescribe and\\n\\nadminister her daily prescription medication, which kept her stable.\\n\\n On January 11, 2016, an Immigration Judge granted Small immigration\\n\\nrelief and ordered her release.5 Small was released from the Jail on January 19,\\n\\n2016 at around 6:30 PM, in below-freezing temperatures, with $80 in cash. Small\\n\\nwas not given an interim supply of her prescribed medicines, a list of her\\n\\nmedications, a description of the treatment she had received while detained, or a\\n\\nlist of outside referrals or providers for continuing care. During the roughly six\\n\\nmonths in which Small was treated for her mental illness at the Jail, she was not\\n\\nprovided with any discharge planning.\\n\\n Upon her release, Small took the train from Orange County to Penn\\n\\nStation. She stayed briefly with family members, and then a social worker from\\n\\nthe organization that had provided Small with immigration representation\\n\\narranged for her to live in a shelter. While Small was struggling to re-establish\\n\\nher life after release, she was extremely distressed and worried for her own\\n\\n5\\n Again, the record does not describe the exact nature of the disposition.\\n\\n 11\\n\\fhealth and the possibility of relapsing without the medication she had been\\n\\ntaking to treat her mental illness. On January 21, 2016, Small checked herself into\\n\\nthe emergency room at North Central Bronx Hospital in an effort to obtain\\n\\nmedication. Because Small had written down a list of the medications she was\\n\\ntaking while detained, the hospital was able to prescribe her the same\\n\\nmedications without a full psychological evaluation. These events were\\n\\nemotionally distressing for her.\\n\\nIII. Procedural History\\n\\n Plaintiffs filed a complaint (the “Complaint”) on July 12, 2016, asserting\\n\\nviolations of the Fourteenth Amendment. They claim that substantive due\\n\\nprocess requires that civil detainees be afforded adequate medical care during\\n\\ntheir detention, and that their medical care should have included discharge\\n\\nplanning, because of their serious mental illnesses. They allege that discharge\\n\\nplanning is regarded by medical and psychological professionals as an essential\\n\\npart of mental health care, especially in institutional settings, where it is\\n\\nnecessary to mitigate the risks of interrupted treatment while patients transition\\n\\nfrom treatment within the institution to other sources of treatment. Plaintiffs\\n\\ncontend that by failing to provide them with discharge planning, Defendants\\n\\n\\n 12\\n\\fwere deliberately indifferent to the risk that Plaintiffs would relapse upon release\\n\\nand face mental decompensation and other serious health consequences.\\n\\n On January 30, 2017, Defendants moved to dismiss the entire Complaint\\n\\nfor failure to state a claim. Defendants argued that there is no established\\n\\nsubstantive due process right to the post-release measures inherent in discharge\\n\\nplans. On their view, the government’s duty of care ends the instant the inmate\\n\\nwalks through the prison gates and into the civilian world, because that is when\\n\\nthe inmate’s ability to secure medication or care on his own behalf is restored.\\n\\n On September 29, 2017, the district court granted Defendants’ motions.6 See\\n\\nCharles v. County of Orange, No. 16-CV-5527 (NSR), 2017 WL 4402576 (S.D.N.Y.\\n\\nSept. 29, 2017). The district court construed the Complaint as stating three claims\\n\\nunder § 1983: (1) a Monell claim against Orange County, the Orange County\\n\\nSheriff’s Department, and the Orange County Department of Mental Health (the\\n\\n“County Defendants”) alleging a policy, practice and custom of providing\\n\\nconstitutionally inadequate health care to persons held in civil immigration\\n\\ndetention; (2) a claim against all Defendants for deliberate indifference to\\n\\n\\n\\n6\\n Defendants-Appellants filed one joint motion and former defendant Kaye filed a\\nseparate motion.\\n\\n 13\\n\\fPlaintiffs’ serious medical needs by discharging them from the Jail without\\n\\nadequate discharge plans; and (3) supervisory liability claims against Kaye and\\n\\nElizondo (the “Individual Defendants”), successive clinic directors at the Jail,\\n\\nwho Plaintiffs claim were responsible for providing them with medical treatment\\n\\nwhile they were detained.\\n\\n The district court recognized that the Fourteenth Amendment Due Process\\n\\nClause requires a correctional facility to provide medical care to detainees while\\n\\nthey are in custody. But it understood the Complaint to claim that Defendants\\n\\ndid not provide Plaintiffs with necessary medical treatment after they were\\n\\nreleased. The district court concluded that even though the Plaintiffs had\\n\\nadequately pled that the Defendants were deliberately indifferent to their serious\\n\\nmedical needs, the standard they would have to meet if they alleged a\\n\\nconstitutional violation while they were in custody, Plaintiffs’ claims failed\\n\\nbecause the failure of treatment did not “shock the conscience.” Since Plaintiffs’\\n\\nsubstantive Fourteenth Amendment claim failed, the district court declined to\\n\\naddress the Monell claim against the County Defendants, or the supervisory\\n\\nliability claim against the Individual Defendants.\\n\\n\\n\\n\\n 14\\n\\f Because the district court construed Plaintiffs’ allegations as regarding\\n\\ndeliberate indifference to post-custody medical care, rather than deliberate\\n\\nindifference to needed in-custody medical care, the district court applied the\\n\\nwrong standard in determining whether Plaintiffs adequately pled a Fourteenth\\n\\nAmendment violation. We therefore vacate the district court’s dismissal of the\\n\\nComplaint and remand for further proceedings.\\n\\n DISCUSSION\\n\\n We review de novo a district court’s grant of a motion to dismiss pursuant\\n\\nto Rule 12(b)(6) and grant of a motion for judgment on the pleadings under Rule\\n\\n12(c). See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156–57 (2d Cir. 2017);\\n\\nKirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). In considering\\n\\nDefendants’ motions, we accept as true all factual allegations in the Complaint\\n\\nand draw all reasonable inferences in Plaintiffs’ favor. See id.\\n\\n At this stage, we need decide only whether Plaintiffs’ claims are facially\\n\\nplausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial\\n\\nplausibility when the plaintiff pleads factual content that allows the court to\\n\\ndraw the reasonable inference that the defendant is liable for the misconduct\\n\\nalleged. The plausibility standard is not akin to a probability requirement, but it\\n\\n\\n 15\\n\\fasks for more than a sheer possibility that a defendant has acted unlawfully.” Id.\\n\\n(internal citations and quotation marks omitted).\\n\\nI. Discharge Planning as In-Custody Care\\n\\n On appeal, Plaintiffs argue that the district court misconstrued the\\n\\nallegations in their Complaint and therefore applied an incorrect legal analysis to\\n\\ntheir Fourteenth Amendment claims. The district court construed Plaintiffs’\\n\\nComplaint as contending that the Defendants owed Plaintiffs a duty to provide\\n\\nthem with limited medical care after they had been released from custody.\\n\\n Plaintiffs argue that the deprivation of care that they allege in fact occurred\\n\\nduring their detention, because discharge planning occurs before release from\\n\\ncustody. Their argument is consistent with the Complaint, which clearly purports\\n\\nto allege an in-custody deprivation of care. Whether Plaintiffs’ claim for\\n\\ndeprivation of discharge planning, which negatively affected them after their\\n\\nrelease from custody, can be considered a claim for in-custody deprivation of\\n\\ncare is an important question in this case.\\n\\n This distinction matters because the duties state actors owe to individuals\\n\\ndiffer depending on whether the complainant was in the state’s custody. As a\\n\\ngeneral matter, the state is under no constitutional duty to provide substantive\\n\\n\\n 16\\n\\fservices to free persons within its borders. See DeShaney v. Winnebago Cty. Dep’t of\\n\\nSoc. Servs., 489 U.S. 189, 196 (1989). But when a person is involuntarily held in\\n\\nstate custody, and thus wholly dependent upon the state, the state takes on an\\n\\naffirmative duty to provide for his or her “safety and general well-being.” Id. at\\n\\n199–200. This “special relationship exception” imposes a duty on the state in\\n\\nrecognition of “the limitation which [the state] has imposed on [the person’s]\\n\\nfreedom to act on his own behalf.” Id. at 200; see also Matican v. City of New York,\\n\\n524 F.3d 151, 156 (2d Cir. 2008).\\n\\n In Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court held that the\\n\\nstate has a constitutional obligation to provide medical care to persons it is\\n\\npunishing by incarceration. When the state is deliberately indifferent to the\\n\\nmedical needs of a person it has taken into custody, it violates the Eighth\\n\\nAmendment’s prohibition on cruel and unusual punishment. Id. at 104. The\\n\\nSupreme Court subsequently extended the protections for prisoners established\\n\\nin Estelle to civil detainees under the Due Process Clause of the Fourteenth\\n\\nAmendment, reasoning that persons in civil detention deserve at least as much\\n\\nprotection as those who are criminally incarcerated. See Youngberg v. Romeo, 457\\n\\nU.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).\\n\\n\\n 17\\n\\fThe Ninth Circuit has extended the reasoning of Estelle and DeShaney beyond the\\n\\nmoment of release from custody, holding in Wakefield v. Thompson, 177 F.3d 1160,\\n\\n1164 (9th Cir. 1999), that the state owes an affirmative duty to provide an\\n\\noutgoing prisoner requiring medication with a “supply sufficient to ensure that\\n\\nhe has that medication available during the period of time reasonably necessary\\n\\nto permit him to consult a doctor and obtain a new supply.” The Ninth Circuit\\n\\nbased this holding on a matter of common sense: “that a prisoner’s ability to\\n\\nsecure medication ‘on his own behalf’ is not necessarily restored the instant he\\n\\nwalks through the prison gates and into the civilian world.” Id. This Court,\\n\\nhowever, has never held that the state’s duties to an inmate or detainee extend\\n\\nbeyond their release.\\n\\n Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential\\n\\npart of mental healthcare in institutional settings” and “Defendants are\\n\\nconstitutionally obliged to provide Plaintiffs with adequate medical care while\\n\\nthey are confined to immigration detention.” App’x at 10. Plaintiffs allege that\\n\\ndischarge planning includes providing the detainee with (1) a summary of\\n\\nmedical records (including admission diagnosis, discharge diagnosis, all\\n\\ndiagnostic test results, a list of medications prescribed, a summary of care\\n\\n\\n 18\\n\\fprovided, a summary of the detainee’s response to treatment, medical\\n\\ncomplications encountered, and any outside healthcare referrals); (2) an interim\\n\\nsupply of medication; and (3) a continuity of care plan, including referrals to\\n\\ncommunity based providers. Plaintiffs’ Complaint alleges that the provision of\\n\\nthese services and documents should begin being provided to the patient at the\\n\\noutset of in-custody medical treatment, and continue during the course of\\n\\ntreatment.\\n\\n Plaintiffs’ theory raises a legal question of first impression in this Circuit:\\n\\nwhether a claim of constitutional entitlement to discharge planning, the alleged\\n\\ninadequacy of which causes post-release harm, can be considered a claim to in-\\n\\ncustody care cognizable under the “special relationship” exception. Discharge\\n\\nplanning is fundamentally different from other measures or types of care to\\n\\nwhich detainees may be entitled while in custody, in that its entire purpose is to\\n\\nprevent post-release harm. Given the reality that the tangible harm Plaintiffs\\n\\nsuffered was a direct result of their lack of medication and medical records after\\n\\nrelease from custody, the District Court understandably construed the Complaint\\n\\nas asserting “a right to post-release measures inherent in discharge planning.”\\n\\nCharles, 2017 WL 4402576, at *8.\\n\\n\\n 19\\n\\f Nevertheless, discharge planning is not so different from other measures\\n\\nthe state takes in providing care to those in its custody as to be categorically\\n\\nbeyond the reach of the “special relationship” exception. If discharge planning is\\n\\nto occur at all, it must, by definition, occur prior to release from custody. Whether\\n\\nthe three components of discharge planning that Plaintiffs identify are an\\n\\n“essential part” of mental healthcare, as Plaintiffs allege, is a factual matter that\\n\\nmay be proven at a later stage of litigation by expert testimony. If discharge\\n\\nplanning is essential to providing care for mentally ill individuals, the rationale\\n\\nfor the “special relationship” exception applies to this need no less than the need\\n\\nfor other types of care. As the Supreme Court recognized in Estelle, “an inmate\\n\\nmust rely on prison authorities to treat his medical needs; if the authorities fail to\\n\\ndo so, those needs will not be met.” 429 U.S. at 103. The Supreme Court in Estelle\\n\\nwas concerned with failures to provide care that may result in death or\\n\\n“unnecessary” “pain and suffering.” Id. The failure to provide discharge\\n\\nplanning, no less than other forms of care, may inflict such suffering. In this case,\\n\\nfurthermore, it cannot be said that when the County released Plaintiffs, it “placed\\n\\n[them] in no worse position than that in which [they] would have been had it not\\n\\nacted at all . . .” DeShaney, 489 U.S. at 201; see App’x at 18, 21–22 (Charles); id. at\\n\\n24 (Small).\\n\\n 20\\n\\f That the harmful consequences of a lack of discharge planning occur after\\n\\nrelease from custody does not remove discharge planning from the purview of\\n\\nthe “special relationship” exception. For example, we affirmed application of this\\n\\nexception where an inmate died a few weeks after being released from custody,\\n\\nallegedly due to the facility’s inadequate medical treatment. Rodriguez ex rel.\\n\\nEstate of Darby v. Walrath, 94 F. App’x 864 (2d Cir. 2004).8\\n\\n Common sense and experience further support Plaintiffs’ theory that\\n\\ndischarge planning is part of in-custody care. It comports with common sense\\n\\nthat someone with a serious mental illness would need to receive a summary of\\n\\nhis medical records, including documents indicating his diagnosis and his\\n\\nprescribed medications. These aspects of a discharge plan are expected parts of\\n\\n8\\n Similarly, in Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000), the\\nplaintiff had surgery to remove kidney stones while incarcerated. He was\\nreleased on parole shortly thereafter, but before Lugo’s treating physician was\\nable to remove a metal stent from his kidney. Id. Noting that Lugo “was\\nundergoing continuing treatment at the time he was released,” the district court\\nheld that releasing Lugo with the stent in his body, and without either allowing\\nhim to return to Albany for treatment or forwarding his medical records to\\nanother facility to facilitate the performance of the operation there constituted\\ndeliberate indifference. Id. Although Plaintiffs’ theory in this case does not\\nrequire us to reach the question of whether the state’s duty of care extends\\nbeyond a detainee’s release from custody, as the district court in Lugo held, the\\nfacts in Lugo illustrate how a failure to provide certain in-custody care may have\\nharmful post-release effects that are inextricably bound up with that in-custody\\ndeprivation.\\n\\n 21\\n\\fwhat non-incarcerated patients seek, and pay for, in visiting doctors and\\n\\nhospitals for treatment. Those who have seen a doctor, visited a hospital\\n\\nemergency room, undergone surgery, or received any kind of medical treatment\\n\\nfor a serious physical, emotional, dental or visual problem, understand the need\\n\\nfor, and have likely been provided, documentation of the medications prescribed\\n\\nto them, their diagnosis, and a copy of any test results, during the course of their\\n\\ntreatment. Thus, to the extent Plaintiffs complain that they were not provided\\n\\nwith documentation regarding the treatment they received while in custody,\\n\\ntheir complaint relates to the provision of in-custody medical care.\\n\\n These common-sense understandings are consistent with expert medical\\n\\nopinion. Plaintiffs point to a broad array of professional mental health and\\n\\nmedical associations who agree that the standard of reasonable and adequate\\n\\nmedical care for detained persons includes providing the detainee with interim\\n\\nmedications and referrals while they are still in custody. For example, the American\\n\\nPsychiatric Association views discharge planning as in-custody care, stating that\\n\\nit “needs to begin as part of the initial treatment plan.” Brief of Bronx Defenders\\n\\net al. as Amici Curiae Supporting Appellants at 21. The American Association of\\n\\nCommunity Psychiatrists says that “it is imperative that any psychiatric\\n\\ntreatment provided during a period of incarceration include planning for post-\\n\\n 22\\n\\frelease follow-up care in the community.” App’x at 30 (emphasis added). The\\n\\nNational Commission on Correctional Health Care, from which the Jail has\\n\\nsought and obtained accreditation, defines discharge planning as “the process of\\n\\nproviding sufficient medications for short-term continuity upon release and\\n\\narranging for necessary follow-up mental health services before the inmate’s release\\n\\nto the community.” Id. at 31 (emphasis added). Such expert medical opinion\\n\\nsupports the plausibility of Plaintiffs’ claim of a deprivation of in-custody care.\\n\\n We also find plausible Plaintiffs’ contention that the provision of interim\\n\\nmedication and referrals is part of the treatment that should have been provided\\n\\nto them while they were in custody. The American Psychiatric Association, the\\n\\nAmerican Academy of Psychiatry and the Law, the American Psychological\\n\\nAssociation, the American Medical Association, the National Association of\\n\\nSocial Workers, the American Public Health Association, and the Judge David L.\\n\\nBazelon Center for Mental Health (collectively the “APA Amici”) wrote in\\n\\nsupport of Plaintiffs to explain that discharge planning, which includes a\\n\\nsufficient quantity of medication to allow continuous use, conducting a pre-\\n\\ndischarge assessment, establishing appointments with community providers, and\\n\\nensuring that medical records are effectively transferred to community\\n\\nproviders, is an essential component of minimally adequate mental health care\\n\\n\\n 23\\n\\ffor institutional patients. APA Amicus Brief at 13–14. These views are consistent\\n\\nwith how we think of medical services in a non-custodial setting. Doctors\\n\\nroutinely provide their patients with instructions on how to treat their illnesses\\n\\nafter they leave the doctor’s office, provide their patients with referrals to other\\n\\nhealthcare providers when necessary, and refill their patients’ prescriptions so as\\n\\nto avoid a lapse in care. Such services are particularly essential for patients who\\n\\nare hospitalized or otherwise confined, to make possible continuity of care after\\n\\ntheir release.\\n\\n That discharge planning is supposed to occur before release is also\\n\\nreferenced in a variety of guidelines and regulations promulgated by correctional\\n\\nauthorities. For example, ICE’s own Performance Based National Detention\\n\\nStandards require discharge planning prior to release.9\\n\\n\\n Thus, taking Plaintiffs’ allegations as true and drawing all reasonable\\n\\n\\n\\n9\\n That the contents of a discharge plan or package may be provided at or about\\nthe time of release does not defeat the claim that the preparation and planning\\nfor after-care is an inherent part of proper medical treatment. That a package of\\nafter-care instructions, medication, and medical equipment such as dressings or\\nbandages is provided to a paying patient by a staff member on the way out of an\\nemergency room or doctor’s office by a nurse or receptionist, rather than in the\\ntreatment room itself by the primary care physician, does not mean that it is not\\nan inherent part of the treatment required of the doctor or hospital; the same is\\ntrue for a patient who is in custody.\\n\\n 24\\n\\finferences in their favor, we find that Plaintiffs have plausibly alleged that\\n\\ndischarge planning is an essential part of in-custody care. We conclude that\\n\\ndespite the forward-looking nature of discharge planning, a claim for damages\\n\\ncaused by the lack of it can be considered a claim for deprivation of in-custody\\n\\ncare for purposes of the “special relationship” exception. It will be for Plaintiffs to\\n\\nprove to a fact-finder, on remand, that the care they complain of is the type that\\n\\nshould have been provided to them during their detention.10\\n\\n\\nII. The Appropriate Standard for the Deprivation of In-Custody Care\\n\\n Once we accept that Plaintiffs’ theory regards the adequacy of medical care\\n\\nPlaintiffs received while in custody, the legal framework that applies to their claim\\n\\nbecomes clear. It is well established that when the state takes a person into\\n\\ncustody, severely limiting his ability to care for himself, and then is deliberately\\n\\nindifferent to his medical needs, the Eighth Amendment’s proscription against\\n\\n\\n\\n10\\n In recognizing that Plaintiffs’ claim for deprivation of discharge planning may\\nbe cognizable under the “special relationship” exception, we do not hold that any\\ndetainee who receives medical treatment while detained and subsequently\\nsuffers a potentially preventable health problem may assert a Fourteenth\\nAmendment claim by alleging inadequate discharge planning. The facts alleged\\nin this case show a clear causal link and temporal proximity between the lack of\\ndischarge planning and the negative effects on Plaintiffs, in addition to a serious\\nmedical need for discharge planning and deliberate indifference to that need, as\\ndiscussed below.\\n\\n 25\\n\\fthe unnecessary and wanton infliction of pain is violated. Estelle, 429 U.S. at 104.\\n\\nThat is true whether the deliberate indifference is manifested by prison doctors in\\n\\ntheir response to the prisoner’s needs, or by prison guards who intentionally\\n\\ndeny or delay access to medical care or intentionally deny or delay access to the\\n\\ntreatment once prescribed. Id. at 104–05. The Estelle Court concluded that to state\\n\\na cause of action under § 1983 for violations of the Eighth Amendment’s Cruel\\n\\nand Unusual Punishment Clause, a prisoner must show that the state was\\n\\ndeliberately indifferent to his or her medical needs. Id. at 105. As discussed\\n\\nabove, pursuant to the Due Process Clause of the Fourteenth Amendment, the\\n\\nSupreme Court has extended to civil detainees Estelle’s protection for prisoners\\n\\nunder the Eighth Amendment. See Youngberg, 457 U.S. at 321–22; City of Revere,\\n\\n463 U.S. at 244. Thus, those in civil detention, as were Plaintiffs in this case, are\\n\\nalso afforded a right to be free from deliberate indifference to their serious\\n\\nmedical needs.\\n\\n “In order to establish a violation of a right to substantive due process, a\\n\\nplaintiff must demonstrate not only government action but also that the\\n\\ngovernment action was so ‘egregious, so outrageous, that it may fairly be said to\\n\\nshock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.\\n\\n2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The\\n\\n 26\\n\\fSupreme Court has held that the point of conscience shocking is reached when\\n\\ngovernment actors are deliberately indifferent to the medical needs of pretrial\\n\\ndetainees. Lewis, 523 U.S. at 849–50; see Estelle, 429 U.S. at 104–06; City of Revere,\\n\\n463 U.S. at 244. In this particular context, “deliberately indifferent conduct” is\\n\\n“egregious enough to state a substantive due process claim.” Lewis, 523 U.S. at\\n\\n849–50. A court need not, therefore, conduct a separate analysis, over and above\\n\\nthe deliberate indifference analysis, of whether the state’s conduct “shocks the\\n\\nconscience.”11\\n\\n In accepting, at this stage, Plaintiffs’ theory that discharge planning is an\\n\\nessential part of in-custody medical care and that Plaintiffs were therefore\\n\\ndeprived of adequate medical care while in state custody, Plaintiffs fall well\\n\\nwithin the “special relationship” exception. Therefore, Plaintiffs’ Fourteenth\\n\\nAmendment claim must meet two requirements: (1) that Plaintiffs had a serious\\n\\nmedical need for discharge planning, and (2) that the Defendants acted with\\n\\n\\n11\\n We have applied a separate “shocks the conscience” analysis in cases that do not\\ninvolve the medical needs of those the state has taken into custody. See, e.g., Matican,\\n524 F.3d at 155 (requiring plaintiff to show conscience-shocking behavior on the part of\\nthe state where plaintiff confidential informant was harmed while on the streets, not in\\na prison or jail); Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (requiring proof of\\nconscience-shocking behavior when plaintiffs alleged government made false\\nassurances that workplace would be safe, although plaintiffs were not in custody).\\n\\n 27\\n\\fdeliberate indifference to such needs. See Estelle, 429 U.S. at 105; Darnell v. Pineiro,\\n\\n849 F.3d 17, 29 (2017).\\n\\n A. Serious Medical Needs\\n\\n Depending on their severity, psychiatric or psychological conditions can\\n\\npresent serious medical needs in light of our contemporary standards. See e.g.,\\n\\nCuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The serious medical needs\\n\\nstandard contemplates a condition of urgency such as one that may produce\\n\\ndeath, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553\\n\\n(2d Cir. 1996). In determining whether a medical need is sufficiently serious to be\\n\\ncognizable as a basis for a constitutional claim for deprivation of medical care, we\\n\\nconsider factors such as whether a reasonable doctor or patient would find the\\n\\ninjury important and worthy of treatment, whether the medical condition\\n\\nsignificantly affects an individual’s daily activities, and whether the illness or\\n\\ninjury inflicts chronic and substantial pain. See Chance v. Armstrong, 143 F.3d 698,\\n\\n702 (2d Cir. 1998). In most cases, the actual medical consequences that flow from\\n\\nthe denial of care are highly relevant in determining whether the denial of\\n\\ntreatment subjected the detainee to a significant risk of serious harm. See Smith v.\\n\\nCarpenter, 316 F.3d 178, 187 (2d Cir. 2003).\\n\\n\\n 28\\n\\f B. Deliberate Indifference\\n\\n The concept of deliberate indifference has a more complicated history in\\n\\nthis Circuit. See Darnell, 849 F.3d at 32–36 (explaining how the concept of\\n\\ndeliberate indifference has evolved in the case law since Farmer v. Brennan, 511\\n\\nU.S. 825 (1994)). In Darnell, we clarified that deliberate indifference, in the context\\n\\nof a Fourteenth Amendment due process claim, can be shown by something akin\\n\\nto recklessness, and does not require proof of a malicious or callous state of mind.\\n\\n849 F.3d at 33–34. Deliberate indifference, we held, can be established by either a\\n\\nsubjective or objective standard: A plaintiff can prove deliberate indifference by\\n\\nshowing that the defendant official “recklessly failed to act with reasonable care\\n\\nto mitigate the risk that the condition posed to the pretrial detainee even though\\n\\nthe defendant-official knew, or should have known, that the condition posed an\\n\\nexcessive risk to [the plaintiff’s] health or safety.” Id. at 35 (emphasis added). This\\n\\nformulation of the deliberate indifference standard was developed in cases\\n\\ninvolving unconstitutional conditions of confinement. In Darnell, the plaintiffs\\n\\ncomplained, inter alia, that the facility where they were detained was unsafe and\\n\\nunsanitary. Id. at 23–26. Although Darnell did not specifically address medical\\n\\ntreatment, the same principle applies here. See id. at 33 n.9 (noting that the same\\n\\n\\n 29\\n\\fstandard applies to claims for deliberate indifference to medical needs because\\n\\n“deliberate indifference means the same thing for each type of claim under the\\n\\nFourteenth Amendment”).\\n\\n A plaintiff must show “something more than mere negligence” to establish\\n\\ndeliberate indifference in the Fourteenth Amendment context. Weyant v. Okst, 101\\n\\nF.3d 845, 856 (2d Cir. 1996). Thus, “mere medical malpractice is not tantamount\\n\\nto deliberate indifference, but it may rise to the level of deliberate indifference\\n\\nwhen it involves culpable recklessness, i.e., an act or a failure to act . . . that\\n\\nevinces a conscious disregard of a substantial risk of serious harm.” Cuoco, 222\\n\\nF.3d at 107 (internal quotation marks and alteration omitted).\\n\\n Thus, a detainee asserting a Fourteenth Amendment claim for deliberate\\n\\nindifference to his medical needs can allege either that the defendants knew that\\n\\nfailing to provide the complained of medical treatment would pose a substantial\\n\\nrisk to his health or that the defendants should have known that failing to provide\\n\\nthe omitted medical treatment would pose a substantial risk to the detainee’s\\n\\nhealth.\\n\\n Whether the state knew or should have known of the substantial risk of\\n\\nharm to the detainee is a question of fact subject to demonstration in the usual\\n\\n\\n 30\\n\\fways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842;\\n\\nsee also Hathaway, 37 F.3d at 67–69 (whether doctor was deliberately indifferent to\\n\\ninmate’s serious medical needs was for jury). “A factfinder may conclude that a\\n\\nprison official knew of a substantial risk from the very fact that the risk was\\n\\nobvious.” Farmer, 511 U.S. at 842.\\n\\n Thus, to sustain their § 1983 cause of action, Plaintiffs must plausibly allege\\n\\nthat they had a sufficiently serious medical need requiring discharge planning\\n\\nand that the deprivation of such planning was inflicted under circumstances\\n\\nconstituting deliberate indifference.\\n\\nIII. Whether Plaintiffs Had Sufficiently Serious Needs Requiring Discharge\\n Planning\\n\\n Plaintiffs have plausibly alleged that they had a sufficiently serious need\\n\\nfor discharge planning given their serious mental illnesses. Plaintiffs’ mental\\n\\nillnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood\\n\\nwhen they go untreated. Without continuous care and daily medication to keep\\n\\nthem mentally stable, Plaintiffs face serious risk of physical and psychological\\n\\nharm.\\n\\n Plaintiffs’ theory that discharge planning is integral to institutional mental\\n\\n\\n\\n\\n 31\\n\\fhealth care is supported by their citations to professional organizations in the\\n\\nmental health field. Many professional organizations that determine appropriate\\n\\nstandards of mental health care regard discharge planning as an essential\\n\\ncomponent of care for the institutionalized mentally ill, including not only\\n\\nsentenced prisoners and civil and criminal detainees with serious mental\\n\\nillnesses, but also those, whether voluntarily hospitalized or involuntarily\\n\\ncommitted, who are institutionalized for the very purpose of treating their\\n\\nmental illnesses. For example, Plaintiffs point to guidance by the American\\n\\nPsychiatric Association, the primary professional association of psychiatrists in\\n\\nthe United States and the largest psychiatric professional organization in the\\n\\nworld, which recognizes that “[t]imely and effective discharge planning is\\n\\nessential to continuity of care and an integral part of adequate mental health\\n\\ntreatment.” App’x at 29.\\n\\n Plaintiffs’ allegations regarding the importance of discharge planning are\\n\\ncorroborated by what befell them when such planning was not provided to them.\\n\\nSee Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Because Plaintiffs were not\\n\\nprovided with discharge plans, Plaintiffs allege they both faced an abrupt\\n\\ninterruption in their care causing them to suffer significant mental health\\n\\n\\n 32\\n\\fconsequences. Charles suffered complete psychiatric decompensation shortly\\n\\nafter being released. His family was forced to call 911 for emergency medical care\\n\\nand he required two months of hospitalization to regain mental stability. Small\\n\\nwas somewhat more fortunate. She received treatment before she fully\\n\\ndecompensated, but she was still forced to check herself into a hospital\\n\\nemergency room within days of her release and continues to suffer extreme\\n\\nemotional and psychological distress.\\n\\n We therefore find plausible Plaintiffs’ allegations that they had serious\\n\\nmedical needs requiring discharge planning. Of course, those are only\\n\\nallegations: we leave it to the fact-finder, or to summary judgment after\\n\\ndiscovery, to determine whether the facts, as developed, prove that Plaintiffs had\\n\\na serious medical need requiring discharge planning and if so, in what form.\\n\\nIV. Whether the Defendants’ Failure to Provide Discharge Planning to\\n Plaintiffs Constituted Deliberate Indifference\\n\\n Plaintiffs have also sufficiently alleged that Defendants knew or should\\n\\nhave known that failing to provide them with discharge planning would cause\\n\\nPlaintiffs substantial harm. According to Plaintiffs, Defendants knew the serious\\n\\nnature of Plaintiffs’ mental health conditions; they diagnosed Plaintiffs,\\n\\n\\n\\n\\n 33\\n\\fmaintained their medical records, created treatment plans for them, and\\n\\nprescribed anti-psychotic and anti-depressant medication for them. As noted\\n\\nabove, Plaintiffs point to guidance by, among others, the American Psychiatric\\n\\nAssociation and the National Commission on Correctional Health Care, stating\\n\\nthat discharge planning is an essential component of adequate institutional\\n\\nmental healthcare for people with Plaintiffs’ illnesses. It is reasonable to infer, at\\n\\nthis stage, that the defendant clinic directors, as mental health professionals\\n\\nengaged in providing treatment to prisoners and detainees in an institutional\\n\\nsetting, were aware of these standards.\\n\\n Nor is it necessary to resort solely to inference. The policies and protocols\\n\\ngoverning Defendants and others providing treatment at the Jail themselves\\n\\ndemand such discharge planning. Both ICE and Orange County have written\\n\\npolicies recognizing that mental health discharge planning is an essential\\n\\ncomponent of mental health treatment in institutional settings. ICE’s 2011\\n\\nPerformance-Based National Detention Standards (revised in 2016) provide that\\n\\n“[d]etainees, who have received medical care, [been] released from custody or\\n\\nremoved shall receive a mental health discharge plan, a summary of medical\\n\\nrecords, any medically necessary medication and referrals to community-based\\n\\n\\n\\n 34\\n\\fproviders as medically appropriate.” App’x at 32 (alterations omitted). Orange\\n\\nCounty policies similarly require that “[n]o client shall be discharged without a\\n\\ndischarge plan” which “shall be given to the client upon discharge.” Id. at 130.\\n\\n Indeed, according to Plaintiffs, Defendants regularly provide discharge\\n\\nplanning to individuals who are held at the Orange County Detention Center in\\n\\ncriminal detention in accordance with these standards—demonstrating\\n\\nDefendants’ understanding that discharge planning is important for mentally ill\\n\\ninmates. In Charles’s case, the Mental Health Department expressly recognized\\n\\nthat Charles would have “projected mental health needs” in his Discharge\\n\\nSummary. Id. at 152.\\n\\n Thus, Plaintiffs have plausibly alleged that Defendants were fully aware of,\\n\\nand violated, both Orange County and ICE policies by failing to provide them\\n\\nwith discharge planning as part of their care. Plaintiffs’ allegations, if proven\\n\\ntrue, are sufficient to establish that Defendants knew, or should have known, of\\n\\nthe substantial risk that Plaintiffs would relapse and suffer serious adverse health\\n\\nconsequences if they were not provided with necessary discharge planning, such\\n\\nthat a fact-finder could infer “reckless disregard” beyond mere negligence or\\n\\nmedical malpractice. Weyant, 101 F.3d at 856; see Harrison v. Barkley, 219 F.3d 132,\\n\\n139 (2d Cir. 2000).\\n\\n\\n 35\\n\\fV. Issues Remaining for Factual Development\\n\\n That Plaintiffs have adequately stated a claim does not, of course, mean\\n\\nthat they have established their entitlement to relief. Plaintiffs will need to\\n\\nprovide evidence to back up their allegations. Moreover, Defendants have raised\\n\\nsignificant factual issues that need to be fleshed out through discovery. These\\n\\ninclude: whether the discharge planning measures Plaintiffs identify should be\\n\\nprovided as part of in-custody care (rather than undertaken upon or after\\n\\nrelease), the medical effects of a temporary deprivation of psychotropic\\n\\nmedication, the causal relationship between the alleged interruption in Plaintiffs’\\n\\ntreatment and the consequences they complain of, and whether the\\n\\ncircumstances of Plaintiffs’ release were so unexpected that Defendants could not\\n\\nhave anticipated, and properly planned for, their release at the time it occurred.\\n\\nMoreover, Plaintiffs’ own allegations about the existence of written Orange\\n\\nCounty policies call into question whether Plaintiffs can establish their contention\\n\\nthat there is a consistent policy, custom, or practice of denying such planning to\\n\\nimmigrant detainees. After discovery, the district court will be in a better position\\n\\nto determine the precise parameters of the treatment that should have been\\n\\nprovided; whether the failure to provide any mandated care was attributable to\\n\\nDefendants’ deliberate indifference, mere negligence, or unforeseen and\\n\\n\\n 36\\n\\funforeseeable circumstances; and what, if any, damages were caused by any\\n\\ndereliction on the part of Defendants.12 But, at the pleading stage, we hold that\\n\\nPlaintiffs have adequately stated a Fourteenth Amendment substantive due\\n\\nprocess claim.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we VACATE the district court’s opinion and\\n\\nREMAND for proceedings consistent with this opinion.\\n\\n\\n\\n\\n12\\n In addition, the district court may consider, on remand, various issues it did\\nnot reach in its September 29, 2017 opinion, and on which we express no opinion,\\nsuch as: (1) whether the Plaintiffs adequately pled a county policy, practice, or\\ncustom for purposes of Monell liability; (2) whether Plaintiffs have adequately\\nstated a claim against Elizondo; and (3) whether Elizondo is entitled to qualified\\nimmunity.\\n\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4400285/\", \"author_raw\": \"GERARD E. LYNCH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"HALL"},"judge3":{"kind":"string","value":"BOLDEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4623032/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Michelet CHARLES, Carol Small, Plaintiffs-Appellants, v. ORANGE COUNTY, State of New York, Orange County Sheriff's Department, Orange County Department of Mental Health, Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendants-Appellees, Nicole Kaye, Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3506-pr\nCharles v. Orange County\n\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n\n August Term, 2018\n\n Argued: September 25, 2018\n Decided: May 24, 2019\n\n No. 17-3506-pr\n\n\n\n MICHELET CHARLES, CAROL SMALL,\n\n Plaintiffs-Appellants,\n\n — v. —\n\n ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT,\n ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, CARMEN ELIZONDO, FORMER\n CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual\n capacity,\n\n Defendants-Appellees,\n\n NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her\n individual capacity,\n\n Defendant.\n\fB e f o r e:\n\n LYNCH and HALL, Circuit Judges, and BOLDEN, District Judge.*\n\n\n\n\n Plaintiffs-Appellants Michelet Charles and Carol Small were formerly civil\nimmigration detainees at the Orange County Correctional Facility, where they\nwere treated for serious mental illnesses. They instituted this civil rights action\nagainst Orange County and some of its agencies and officials under 42 U.S.C.\n§ 1983, complaining that the failure to engage in discharge planning or to provide\nthem with discharge plans upon release violated their substantive due process\nrights under the Fourteenth Amendment. The United States District Court for the\nSouthern District of New York (Nelson S. Román, J.) granted the Defendants’\nmotion to dismiss the complaint. We VACATE and REMAND for further\nproceedings.\n\n\n\n DANIEL J. STUJENSKE, Simpson Thacher & Bartlett LLP, New\n York, NY (Thomas C. Rice, Simpson Thacher & Bartlett\n LLP, on the brief), Laura F. Redman, Antony P. F. Gemmell,\n New York Lawyers for the Public Interest, New York, NY\n for Plaintiffs-Appellants Michelet Charles and Carol Small.\n\n ANTHONY CARDOSO, Orange County Attorney’s Office, Goshen,\n NY, for Defendants-Appellees Orange County, State of\n New York, Orange County Sheriff’s Department, Orange\n County Department of Mental Health and Carmen\n Elizondo, Former Clinic Director, Orange County\n Correctional Facility, in her individual capacity.\n\n\n*\n Judge Victor A. Bolden, of the United States District Court for the District of\nConnecticut, sitting by designation.\n\n 2\n\fAaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick,\n P.L.L.C., Washington, DC (Ira A. Burnim, Judge David C.\n Bazelon Center for Mental Health Law, Washington, DC,\n on the brief), for Amici Curiae American Psychiatric\n Association, American Academy of Psychiatry and the\n Law, American Psychological Association, American\n Medical Association, National Association of Social\n Workers, American Public Health Association, and Judge\n David L. Bazelon Center for Mental Health Law, in\n support of Plaintiffs-Appellants.\n\nJamie A. Levitt, Morrison & Foerster LLP, New York, NY, for\n Amici Curiae The Bronx Defenders, Brooklyn Defender\n Services, Community Initiatives for Visiting Immigrants\n in Confinement, Detention Watch Network, The Florida\n Justice Institute, Inc., Human Rights First, Immigrant\n Defense Project, The Immigrant Rights Clinic of\n Washington Square Legal Services, Inc., at NYU Law\n School, the Kathryn O. Greenberg Immigration Justice\n Clinic at the Benjamin N. Cardozo School of Law, The\n Legal Aid Society of New York, The Prison Law Office,\n Prisoners’ Legal Services of New York, and the Urban\n Justice Center Mental Health Project, in support of\n Plaintiffs-Appellants.\n\nAlexander M. Wilson, New York State Sheriffs’ Association,\n Albany, NY for Amicus Curiae New York State Sheriffs’\n Association, in support of Defendants-Appellees.\n\n\n\n\n 3\n\fGERARD E. LYNCH, Circuit Judge:\n\n The question before us is whether the Plaintiffs-Appellants, Michelet\n\nCharles and Carol Small, have stated a plausible claim for relief under the\n\nFourteenth Amendment for deliberate indifference to their serious medical\n\nneeds. Plaintiffs were confined for many months as civil immigration detainees at\n\nthe Orange County Correctional Facility, where they received treatment for their\n\nserious mental health disorders. Defendants-Appellees are Orange County, the\n\nmunicipality that oversees the Orange County Correctional Facility (“the Jail”);\n\nthe Orange County Sheriff’s Office, the specific entity that contracts with the\n\nFederal Government to house detainees in the Jail; the Orange County\n\nDepartment of Mental Health, the agency responsible for providing mental\n\nhealth services to people confined at the Jail; and Carmen Elizondo, the Clinical\n\nDirector at the Jail.1 Plaintiffs filed a complaint in the United States District Court\n\nfor the Southern District of New York alleging that the Defendants, who were\n\nresponsible for providing them with medical care while they were detained at the\n\nJail, failed to provide them with mental health discharge planning before their\n\n\n\n1\n The parties stipulated to the dismissal of this appeal with prejudice with respect\nto former defendant Nicole Kaye.\n\n 4\n\frelease from custody, in violation of the Fourteenth Amendment’s Due Process\n\nClause. Plaintiffs seek relief under 42 U.S.C. § 1983.\n\n The district court (Nelson S. Román, J.) dismissed Plaintiffs’ complaint for\n\nfailure to state a claim. For the reasons that follow, we VACATE that judgment,\n\nand REMAND for further proceedings.\n\n BACKGROUND\n\n Both Plaintiffs suffer from serious, ongoing mental illnesses.2 Each Plaintiff\n\nwas arrested by agents of the U.S. Immigration and Customs Enforcement\n\n(“ICE”), the federal law enforcement agency charged with the detention and\n\nremoval of illegal immigrants. While awaiting their removal proceedings,\n\nPlaintiffs were detained at the Jail, a county detention facility that houses civil\n\nimmigration detainees pursuant to an intergovernmental agreement between ICE\n\nand Orange County. During their detention, Plaintiffs were treated for their\n\nillnesses, receiving counseling and psychotropic medication. However, the\n\ntreatment Plaintiffs received while they were in custody did not include\n\n\n\n\n2\n On this appeal from the dismissal of a complaint for failure to state a claim, we\ntake the allegations in the complaint as true and construe them in the light most\nfavorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009).\n\n 5\n\fdischarge planning, which Plaintiffs allege is a routine and necessary component\n\nof institutional mental health treatment. Plaintiffs claim that as a result of\n\nDefendants’ failure to provide them with discharge planning while they were in\n\ncustody, they suffered serious mental health consequences shortly after their\n\nrelease.\n\nI. Michelet Charles\n\n Plaintiff Michelet Charles is a 55-year old lawful permanent resident who\n\nhas lived in the United States for 34 years. Charles has suffered from bipolar and\n\nschizoaffective disorders since around 1984. For years, he managed his illness\n\nthrough regular mental health care. When Charles is not treated for his illnesses,\n\nhe suffers from hallucinations, delusions, and periods of mania and depression.\n\n In July 2014, Charles was arrested by ICE officials and detained at the Jail\n\nfor 363 days during the pendency of his immigration case.3 When Charles\n\n\n\n\n3\n ICE and Orange County confine hundreds of people in civil immigration\ndetention at the Orange County Detention Center every year pursuant to an\nInter-Governmental Services Agreement between ICE and Orange County. Civil\nimmigration detainees are held in custody to assure their presence throughout\nthe administrative removal proceedings. Such detainees are not charged with\ncrimes. Nevertheless, civil immigration detainees are housed in conditions\nsimilar to those experienced by detainees awaiting trial on criminal charges.\n\n 6\n\fentered the detention center, medical personnel at the facility diagnosed him\n\nwith bipolar disorder with psychotic features. During his detention, Defendants\n\nprovided Charles with psychiatric care, which included meeting with a\n\npsychiatrist every three weeks in order to monitor his condition, and daily\n\npsychotropic medication to keep him stable. Charles’s treatment was\n\ndocumented by the Jail Clinic in an “Intervention/Care Plan” which listed his\n\ndiagnosis, the types of counseling Charles received, the medication he required,\n\nand any suicidal or harmful tendencies he had.\n\n On July 22, 2015, Charles was brought from the Jail to New York City for\n\nan appearance at the Immigration Court in lower Manhattan. Prior to his\n\nimmigration hearing, Defendants had not provided Charles with any plan for his\n\ncontinued mental health care after discharge, a list of his medications, a list of\n\noutside referrals, any other information about the medication and counseling he\n\nreceived while detained, or assistance or information relevant to his obtaining\n\nfuture treatment for his known medical condition. Nor were any such materials\n\nprovided to Charles at or after his hearing. Charles succeeded at his immigration\n\nhearing4 and was released directly from the court with his identification and\n\n4\n The record does not reflect the precise disposition of the matter.\n\n 7\n\fnothing more. The ICE Deportation Officer who attended the hearing told\n\nCharles’s attorney that ICE did not have any medication for Charles, and that he\n\nshould return to the Jail if he needed to obtain a supply of his medication.\n\n The day after his release, Charles and his daughter drove over 65 miles\n\nfrom their home to the Jail to obtain Charles’s psychiatric medication. When\n\nCharles’s daughter asked an employee at the front desk of the Jail for her father’s\n\nmedication, the employee refused to provide it, claiming that the person who had\n\ntransported Charles to the Immigration Court was responsible for providing him\n\nwith a continuing supply of medication. The Orange County employee also\n\ninformed Charles and his daughter that as a matter of institutional policy, after a\n\nperson is released from the facility, the Jail can no longer provide him with\n\nmedication.\n\n Charles’s immigration attorney then contacted the ICE Deportation Officer\n\nagain, requesting that Charles be provided with a supply of medication. The\n\nOfficer did not respond to the inquiry. According to Charles’s medical file from\n\nthe Jail, on July 23, 2015, the day after his release, and the same day that he\n\nvisited the facility with his daughter, a clinical social worker at the Jail signed a\n\ndocument entitled “Continuing Care Plan/Discharge Summary” (“Discharge\n\n\n 8\n\fSummary”) for Charles. The Discharge Summary listed Charles’ diagnosis and\n\nexpressly anticipated that Charles would have future mental health needs\n\nincluding medication, psychiatric treatment, and substance abuse treatment.\n\nHowever, neither Charles nor his attorney was given a copy of the Discharge\n\nSummary.\n\n After his release, without immediate access to his prescription anti-\n\npsychotic and anti-depressant medications and counseling, Charles soon began\n\npsychologically decompensating. He exhibited bizarre behavior, was\n\ndisorganized, and mumbled when he spoke. His family reported that he was\n\nmanic, anxious, and paranoid.\n\n By August 4, 2015, Charles was experiencing symptoms of psychosis, and\n\nhis ability to control his thoughts and emotions was so impaired that he lost\n\ncontact with reality. On that date, Charles’s family called 911 for emergency\n\nmedical assistance. The police officers who responded to the call transported him\n\nto the emergency room at a nearby hospital. The next day, Charles was\n\nhospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks\n\nHospital. His admission record states that he had worsening aggressive,\n\ndisorganized, and bizarre behavior, and was preoccupied with paranoid ideas. It\n\n\n 9\n\ftook two months in the hospital for Charles’s condition to stabilize and for him to\n\nreturn to his baseline mental state.\n\nII. Carol Small\n\n Plaintiff Carol Small is a 45-year old lawful permanent resident of the\n\nUnited States. Before she was detained, Small lived on her own and supported\n\nherself as a hairdresser in the Bronx.\n\n Small was detained at the Jail in May 2015. After about a month of\n\ndetention, Small began experiencing symptoms of severe mental illness,\n\nincluding visual and auditory hallucinations. She became extremely paranoid\n\nand delusional, believing that she was being monitored by the government\n\nthrough a chip implanted in her tooth, that there was a government conspiracy to\n\npoison her, and that poison was coming through the vents in the Jail. In late June\n\n2015, a psychiatrist at the Jail diagnosed Small with paranoid schizophrenia.\n\nSimilarly to Charles, her diagnosis, medications, and counseling needs were\n\ndocumented by the Jail Clinic in a document titled “Intervention/Care Plan.” But\n\nlike Charles, Small was not provided with a copy of that document.\n\n In September 2015, Small was transferred to the inpatient ward at Kings\n\nCounty Hospital for intensive treatment for her mental illness. In October, after\n\n\n 10\n\fher condition stabilized, she was transferred back to the Jail. Upon her return,\n\nmedical employees of the Orange County Department of Mental Health provided\n\nSmall with medically necessary treatment and continued to prescribe and\n\nadminister her daily prescription medication, which kept her stable.\n\n On January 11, 2016, an Immigration Judge granted Small immigration\n\nrelief and ordered her release.5 Small was released from the Jail on January 19,\n\n2016 at around 6:30 PM, in below-freezing temperatures, with $80 in cash. Small\n\nwas not given an interim supply of her prescribed medicines, a list of her\n\nmedications, a description of the treatment she had received while detained, or a\n\nlist of outside referrals or providers for continuing care. During the roughly six\n\nmonths in which Small was treated for her mental illness at the Jail, she was not\n\nprovided with any discharge planning.\n\n Upon her release, Small took the train from Orange County to Penn\n\nStation. She stayed briefly with family members, and then a social worker from\n\nthe organization that had provided Small with immigration representation\n\narranged for her to live in a shelter. While Small was struggling to re-establish\n\nher life after release, she was extremely distressed and worried for her own\n\n5\n Again, the record does not describe the exact nature of the disposition.\n\n 11\n\fhealth and the possibility of relapsing without the medication she had been\n\ntaking to treat her mental illness. On January 21, 2016, Small checked herself into\n\nthe emergency room at North Central Bronx Hospital in an effort to obtain\n\nmedication. Because Small had written down a list of the medications she was\n\ntaking while detained, the hospital was able to prescribe her the same\n\nmedications without a full psychological evaluation. These events were\n\nemotionally distressing for her.\n\nIII. Procedural History\n\n Plaintiffs filed a complaint (the “Complaint”) on July 12, 2016, asserting\n\nviolations of the Fourteenth Amendment. They claim that substantive due\n\nprocess requires that civil detainees be afforded adequate medical care during\n\ntheir detention, and that their medical care should have included discharge\n\nplanning, because of their serious mental illnesses. They allege that discharge\n\nplanning is regarded by medical and psychological professionals as an essential\n\npart of mental health care, especially in institutional settings, where it is\n\nnecessary to mitigate the risks of interrupted treatment while patients transition\n\nfrom treatment within the institution to other sources of treatment. Plaintiffs\n\ncontend that by failing to provide them with discharge planning, Defendants\n\n\n 12\n\fwere deliberately indifferent to the risk that Plaintiffs would relapse upon release\n\nand face mental decompensation and other serious health consequences.\n\n On January 30, 2017, Defendants moved to dismiss the entire Complaint\n\nfor failure to state a claim. Defendants argued that there is no established\n\nsubstantive due process right to the post-release measures inherent in discharge\n\nplans. On their view, the government’s duty of care ends the instant the inmate\n\nwalks through the prison gates and into the civilian world, because that is when\n\nthe inmate’s ability to secure medication or care on his own behalf is restored.\n\n On September 29, 2017, the district court granted Defendants’ motions.6 See\n\nCharles v. County of Orange, No. 16-CV-5527 (NSR), 2017 WL 4402576 (S.D.N.Y.\n\nSept. 29, 2017). The district court construed the Complaint as stating three claims\n\nunder § 1983: (1) a Monell claim against Orange County, the Orange County\n\nSheriff’s Department, and the Orange County Department of Mental Health (the\n\n“County Defendants”) alleging a policy, practice and custom of providing\n\nconstitutionally inadequate health care to persons held in civil immigration\n\ndetention; (2) a claim against all Defendants for deliberate indifference to\n\n\n\n6\n Defendants-Appellants filed one joint motion and former defendant Kaye filed a\nseparate motion.\n\n 13\n\fPlaintiffs’ serious medical needs by discharging them from the Jail without\n\nadequate discharge plans; and (3) supervisory liability claims against Kaye and\n\nElizondo (the “Individual Defendants”), successive clinic directors at the Jail,\n\nwho Plaintiffs claim were responsible for providing them with medical treatment\n\nwhile they were detained.\n\n The district court recognized that the Fourteenth Amendment Due Process\n\nClause requires a correctional facility to provide medical care to detainees while\n\nthey are in custody. But it understood the Complaint to claim that Defendants\n\ndid not provide Plaintiffs with necessary medical treatment after they were\n\nreleased. The district court concluded that even though the Plaintiffs had\n\nadequately pled that the Defendants were deliberately indifferent to their serious\n\nmedical needs, the standard they would have to meet if they alleged a\n\nconstitutional violation while they were in custody, Plaintiffs’ claims failed\n\nbecause the failure of treatment did not “shock the conscience.” Since Plaintiffs’\n\nsubstantive Fourteenth Amendment claim failed, the district court declined to\n\naddress the Monell claim against the County Defendants, or the supervisory\n\nliability claim against the Individual Defendants.\n\n\n\n\n 14\n\f Because the district court construed Plaintiffs’ allegations as regarding\n\ndeliberate indifference to post-custody medical care, rather than deliberate\n\nindifference to needed in-custody medical care, the district court applied the\n\nwrong standard in determining whether Plaintiffs adequately pled a Fourteenth\n\nAmendment violation. We therefore vacate the district court’s dismissal of the\n\nComplaint and remand for further proceedings.\n\n DISCUSSION\n\n We review de novo a district court’s grant of a motion to dismiss pursuant\n\nto Rule 12(b)(6) and grant of a motion for judgment on the pleadings under Rule\n\n12(c). See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156–57 (2d Cir. 2017);\n\nKirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). In considering\n\nDefendants’ motions, we accept as true all factual allegations in the Complaint\n\nand draw all reasonable inferences in Plaintiffs’ favor. See id.\n\n At this stage, we need decide only whether Plaintiffs’ claims are facially\n\nplausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial\n\nplausibility when the plaintiff pleads factual content that allows the court to\n\ndraw the reasonable inference that the defendant is liable for the misconduct\n\nalleged. The plausibility standard is not akin to a probability requirement, but it\n\n\n 15\n\fasks for more than a sheer possibility that a defendant has acted unlawfully.” Id.\n\n(internal citations and quotation marks omitted).\n\nI. Discharge Planning as In-Custody Care\n\n On appeal, Plaintiffs argue that the district court misconstrued the\n\nallegations in their Complaint and therefore applied an incorrect legal analysis to\n\ntheir Fourteenth Amendment claims. The district court construed Plaintiffs’\n\nComplaint as contending that the Defendants owed Plaintiffs a duty to provide\n\nthem with limited medical care after they had been released from custody.\n\n Plaintiffs argue that the deprivation of care that they allege in fact occurred\n\nduring their detention, because discharge planning occurs before release from\n\ncustody. Their argument is consistent with the Complaint, which clearly purports\n\nto allege an in-custody deprivation of care. Whether Plaintiffs’ claim for\n\ndeprivation of discharge planning, which negatively affected them after their\n\nrelease from custody, can be considered a claim for in-custody deprivation of\n\ncare is an important question in this case.\n\n This distinction matters because the duties state actors owe to individuals\n\ndiffer depending on whether the complainant was in the state’s custody. As a\n\ngeneral matter, the state is under no constitutional duty to provide substantive\n\n\n 16\n\fservices to free persons within its borders. See DeShaney v. Winnebago Cty. Dep’t of\n\nSoc. Servs., 489 U.S. 189, 196 (1989). But when a person is involuntarily held in\n\nstate custody, and thus wholly dependent upon the state, the state takes on an\n\naffirmative duty to provide for his or her “safety and general well-being.” Id. at\n\n199–200. This “special relationship exception” imposes a duty on the state in\n\nrecognition of “the limitation which [the state] has imposed on [the person’s]\n\nfreedom to act on his own behalf.” Id. at 200; see also Matican v. City of New York,\n\n524 F.3d 151, 156 (2d Cir. 2008).\n\n In Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court held that the\n\nstate has a constitutional obligation to provide medical care to persons it is\n\npunishing by incarceration. When the state is deliberately indifferent to the\n\nmedical needs of a person it has taken into custody, it violates the Eighth\n\nAmendment’s prohibition on cruel and unusual punishment. Id. at 104. The\n\nSupreme Court subsequently extended the protections for prisoners established\n\nin Estelle to civil detainees under the Due Process Clause of the Fourteenth\n\nAmendment, reasoning that persons in civil detention deserve at least as much\n\nprotection as those who are criminally incarcerated. See Youngberg v. Romeo, 457\n\nU.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).\n\n\n 17\n\fThe Ninth Circuit has extended the reasoning of Estelle and DeShaney beyond the\n\nmoment of release from custody, holding in Wakefield v. Thompson, 177 F.3d 1160,\n\n1164 (9th Cir. 1999), that the state owes an affirmative duty to provide an\n\noutgoing prisoner requiring medication with a “supply sufficient to ensure that\n\nhe has that medication available during the period of time reasonably necessary\n\nto permit him to consult a doctor and obtain a new supply.” The Ninth Circuit\n\nbased this holding on a matter of common sense: “that a prisoner’s ability to\n\nsecure medication ‘on his own behalf’ is not necessarily restored the instant he\n\nwalks through the prison gates and into the civilian world.” Id. This Court,\n\nhowever, has never held that the state’s duties to an inmate or detainee extend\n\nbeyond their release.\n\n Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential\n\npart of mental healthcare in institutional settings” and “Defendants are\n\nconstitutionally obliged to provide Plaintiffs with adequate medical care while\n\nthey are confined to immigration detention.” App’x at 10. Plaintiffs allege that\n\ndischarge planning includes providing the detainee with (1) a summary of\n\nmedical records (including admission diagnosis, discharge diagnosis, all\n\ndiagnostic test results, a list of medications prescribed, a summary of care\n\n\n 18\n\fprovided, a summary of the detainee’s response to treatment, medical\n\ncomplications encountered, and any outside healthcare referrals); (2) an interim\n\nsupply of medication; and (3) a continuity of care plan, including referrals to\n\ncommunity based providers. Plaintiffs’ Complaint alleges that the provision of\n\nthese services and documents should begin being provided to the patient at the\n\noutset of in-custody medical treatment, and continue during the course of\n\ntreatment.\n\n Plaintiffs’ theory raises a legal question of first impression in this Circuit:\n\nwhether a claim of constitutional entitlement to discharge planning, the alleged\n\ninadequacy of which causes post-release harm, can be considered a claim to in-\n\ncustody care cognizable under the “special relationship” exception. Discharge\n\nplanning is fundamentally different from other measures or types of care to\n\nwhich detainees may be entitled while in custody, in that its entire purpose is to\n\nprevent post-release harm. Given the reality that the tangible harm Plaintiffs\n\nsuffered was a direct result of their lack of medication and medical records after\n\nrelease from custody, the District Court understandably construed the Complaint\n\nas asserting “a right to post-release measures inherent in discharge planning.”\n\nCharles, 2017 WL 4402576, at *8.\n\n\n 19\n\f Nevertheless, discharge planning is not so different from other measures\n\nthe state takes in providing care to those in its custody as to be categorically\n\nbeyond the reach of the “special relationship” exception. If discharge planning is\n\nto occur at all, it must, by definition, occur prior to release from custody. Whether\n\nthe three components of discharge planning that Plaintiffs identify are an\n\n“essential part” of mental healthcare, as Plaintiffs allege, is a factual matter that\n\nmay be proven at a later stage of litigation by expert testimony. If discharge\n\nplanning is essential to providing care for mentally ill individuals, the rationale\n\nfor the “special relationship” exception applies to this need no less than the need\n\nfor other types of care. As the Supreme Court recognized in Estelle, “an inmate\n\nmust rely on prison authorities to treat his medical needs; if the authorities fail to\n\ndo so, those needs will not be met.” 429 U.S. at 103. The Supreme Court in Estelle\n\nwas concerned with failures to provide care that may result in death or\n\n“unnecessary” “pain and suffering.” Id. The failure to provide discharge\n\nplanning, no less than other forms of care, may inflict such suffering. In this case,\n\nfurthermore, it cannot be said that when the County released Plaintiffs, it “placed\n\n[them] in no worse position than that in which [they] would have been had it not\n\nacted at all . . .” DeShaney, 489 U.S. at 201; see App’x at 18, 21–22 (Charles); id. at\n\n24 (Small).\n\n 20\n\f That the harmful consequences of a lack of discharge planning occur after\n\nrelease from custody does not remove discharge planning from the purview of\n\nthe “special relationship” exception. For example, we affirmed application of this\n\nexception where an inmate died a few weeks after being released from custody,\n\nallegedly due to the facility’s inadequate medical treatment. Rodriguez ex rel.\n\nEstate of Darby v. Walrath, 94 F. App’x 864 (2d Cir. 2004).8\n\n Common sense and experience further support Plaintiffs’ theory that\n\ndischarge planning is part of in-custody care. It comports with common sense\n\nthat someone with a serious mental illness would need to receive a summary of\n\nhis medical records, including documents indicating his diagnosis and his\n\nprescribed medications. These aspects of a discharge plan are expected parts of\n\n8\n Similarly, in Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000), the\nplaintiff had surgery to remove kidney stones while incarcerated. He was\nreleased on parole shortly thereafter, but before Lugo’s treating physician was\nable to remove a metal stent from his kidney. Id. Noting that Lugo “was\nundergoing continuing treatment at the time he was released,” the district court\nheld that releasing Lugo with the stent in his body, and without either allowing\nhim to return to Albany for treatment or forwarding his medical records to\nanother facility to facilitate the performance of the operation there constituted\ndeliberate indifference. Id. Although Plaintiffs’ theory in this case does not\nrequire us to reach the question of whether the state’s duty of care extends\nbeyond a detainee’s release from custody, as the district court in Lugo held, the\nfacts in Lugo illustrate how a failure to provide certain in-custody care may have\nharmful post-release effects that are inextricably bound up with that in-custody\ndeprivation.\n\n 21\n\fwhat non-incarcerated patients seek, and pay for, in visiting doctors and\n\nhospitals for treatment. Those who have seen a doctor, visited a hospital\n\nemergency room, undergone surgery, or received any kind of medical treatment\n\nfor a serious physical, emotional, dental or visual problem, understand the need\n\nfor, and have likely been provided, documentation of the medications prescribed\n\nto them, their diagnosis, and a copy of any test results, during the course of their\n\ntreatment. Thus, to the extent Plaintiffs complain that they were not provided\n\nwith documentation regarding the treatment they received while in custody,\n\ntheir complaint relates to the provision of in-custody medical care.\n\n These common-sense understandings are consistent with expert medical\n\nopinion. Plaintiffs point to a broad array of professional mental health and\n\nmedical associations who agree that the standard of reasonable and adequate\n\nmedical care for detained persons includes providing the detainee with interim\n\nmedications and referrals while they are still in custody. For example, the American\n\nPsychiatric Association views discharge planning as in-custody care, stating that\n\nit “needs to begin as part of the initial treatment plan.” Brief of Bronx Defenders\n\net al. as Amici Curiae Supporting Appellants at 21. The American Association of\n\nCommunity Psychiatrists says that “it is imperative that any psychiatric\n\ntreatment provided during a period of incarceration include planning for post-\n\n 22\n\frelease follow-up care in the community.” App’x at 30 (emphasis added). The\n\nNational Commission on Correctional Health Care, from which the Jail has\n\nsought and obtained accreditation, defines discharge planning as “the process of\n\nproviding sufficient medications for short-term continuity upon release and\n\narranging for necessary follow-up mental health services before the inmate’s release\n\nto the community.” Id. at 31 (emphasis added). Such expert medical opinion\n\nsupports the plausibility of Plaintiffs’ claim of a deprivation of in-custody care.\n\n We also find plausible Plaintiffs’ contention that the provision of interim\n\nmedication and referrals is part of the treatment that should have been provided\n\nto them while they were in custody. The American Psychiatric Association, the\n\nAmerican Academy of Psychiatry and the Law, the American Psychological\n\nAssociation, the American Medical Association, the National Association of\n\nSocial Workers, the American Public Health Association, and the Judge David L.\n\nBazelon Center for Mental Health (collectively the “APA Amici”) wrote in\n\nsupport of Plaintiffs to explain that discharge planning, which includes a\n\nsufficient quantity of medication to allow continuous use, conducting a pre-\n\ndischarge assessment, establishing appointments with community providers, and\n\nensuring that medical records are effectively transferred to community\n\nproviders, is an essential component of minimally adequate mental health care\n\n\n 23\n\ffor institutional patients. APA Amicus Brief at 13–14. These views are consistent\n\nwith how we think of medical services in a non-custodial setting. Doctors\n\nroutinely provide their patients with instructions on how to treat their illnesses\n\nafter they leave the doctor’s office, provide their patients with referrals to other\n\nhealthcare providers when necessary, and refill their patients’ prescriptions so as\n\nto avoid a lapse in care. Such services are particularly essential for patients who\n\nare hospitalized or otherwise confined, to make possible continuity of care after\n\ntheir release.\n\n That discharge planning is supposed to occur before release is also\n\nreferenced in a variety of guidelines and regulations promulgated by correctional\n\nauthorities. For example, ICE’s own Performance Based National Detention\n\nStandards require discharge planning prior to release.9\n\n\n Thus, taking Plaintiffs’ allegations as true and drawing all reasonable\n\n\n\n9\n That the contents of a discharge plan or package may be provided at or about\nthe time of release does not defeat the claim that the preparation and planning\nfor after-care is an inherent part of proper medical treatment. That a package of\nafter-care instructions, medication, and medical equipment such as dressings or\nbandages is provided to a paying patient by a staff member on the way out of an\nemergency room or doctor’s office by a nurse or receptionist, rather than in the\ntreatment room itself by the primary care physician, does not mean that it is not\nan inherent part of the treatment required of the doctor or hospital; the same is\ntrue for a patient who is in custody.\n\n 24\n\finferences in their favor, we find that Plaintiffs have plausibly alleged that\n\ndischarge planning is an essential part of in-custody care. We conclude that\n\ndespite the forward-looking nature of discharge planning, a claim for damages\n\ncaused by the lack of it can be considered a claim for deprivation of in-custody\n\ncare for purposes of the “special relationship” exception. It will be for Plaintiffs to\n\nprove to a fact-finder, on remand, that the care they complain of is the type that\n\nshould have been provided to them during their detention.10\n\n\nII. The Appropriate Standard for the Deprivation of In-Custody Care\n\n Once we accept that Plaintiffs’ theory regards the adequacy of medical care\n\nPlaintiffs received while in custody, the legal framework that applies to their claim\n\nbecomes clear. It is well established that when the state takes a person into\n\ncustody, severely limiting his ability to care for himself, and then is deliberately\n\nindifferent to his medical needs, the Eighth Amendment’s proscription against\n\n\n\n10\n In recognizing that Plaintiffs’ claim for deprivation of discharge planning may\nbe cognizable under the “special relationship” exception, we do not hold that any\ndetainee who receives medical treatment while detained and subsequently\nsuffers a potentially preventable health problem may assert a Fourteenth\nAmendment claim by alleging inadequate discharge planning. The facts alleged\nin this case show a clear causal link and temporal proximity between the lack of\ndischarge planning and the negative effects on Plaintiffs, in addition to a serious\nmedical need for discharge planning and deliberate indifference to that need, as\ndiscussed below.\n\n 25\n\fthe unnecessary and wanton infliction of pain is violated. Estelle, 429 U.S. at 104.\n\nThat is true whether the deliberate indifference is manifested by prison doctors in\n\ntheir response to the prisoner’s needs, or by prison guards who intentionally\n\ndeny or delay access to medical care or intentionally deny or delay access to the\n\ntreatment once prescribed. Id. at 104–05. The Estelle Court concluded that to state\n\na cause of action under § 1983 for violations of the Eighth Amendment’s Cruel\n\nand Unusual Punishment Clause, a prisoner must show that the state was\n\ndeliberately indifferent to his or her medical needs. Id. at 105. As discussed\n\nabove, pursuant to the Due Process Clause of the Fourteenth Amendment, the\n\nSupreme Court has extended to civil detainees Estelle’s protection for prisoners\n\nunder the Eighth Amendment. See Youngberg, 457 U.S. at 321–22; City of Revere,\n\n463 U.S. at 244. Thus, those in civil detention, as were Plaintiffs in this case, are\n\nalso afforded a right to be free from deliberate indifference to their serious\n\nmedical needs.\n\n “In order to establish a violation of a right to substantive due process, a\n\nplaintiff must demonstrate not only government action but also that the\n\ngovernment action was so ‘egregious, so outrageous, that it may fairly be said to\n\nshock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.\n\n2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The\n\n 26\n\fSupreme Court has held that the point of conscience shocking is reached when\n\ngovernment actors are deliberately indifferent to the medical needs of pretrial\n\ndetainees. Lewis, 523 U.S. at 849–50; see Estelle, 429 U.S. at 104–06; City of Revere,\n\n463 U.S. at 244. In this particular context, “deliberately indifferent conduct” is\n\n“egregious enough to state a substantive due process claim.” Lewis, 523 U.S. at\n\n849–50. A court need not, therefore, conduct a separate analysis, over and above\n\nthe deliberate indifference analysis, of whether the state’s conduct “shocks the\n\nconscience.”11\n\n In accepting, at this stage, Plaintiffs’ theory that discharge planning is an\n\nessential part of in-custody medical care and that Plaintiffs were therefore\n\ndeprived of adequate medical care while in state custody, Plaintiffs fall well\n\nwithin the “special relationship” exception. Therefore, Plaintiffs’ Fourteenth\n\nAmendment claim must meet two requirements: (1) that Plaintiffs had a serious\n\nmedical need for discharge planning, and (2) that the Defendants acted with\n\n\n11\n We have applied a separate “shocks the conscience” analysis in cases that do not\ninvolve the medical needs of those the state has taken into custody. See, e.g., Matican,\n524 F.3d at 155 (requiring plaintiff to show conscience-shocking behavior on the part of\nthe state where plaintiff confidential informant was harmed while on the streets, not in\na prison or jail); Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (requiring proof of\nconscience-shocking behavior when plaintiffs alleged government made false\nassurances that workplace would be safe, although plaintiffs were not in custody).\n\n 27\n\fdeliberate indifference to such needs. See Estelle, 429 U.S. at 105; Darnell v. Pineiro,\n\n849 F.3d 17, 29 (2017).\n\n A. Serious Medical Needs\n\n Depending on their severity, psychiatric or psychological conditions can\n\npresent serious medical needs in light of our contemporary standards. See e.g.,\n\nCuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The serious medical needs\n\nstandard contemplates a condition of urgency such as one that may produce\n\ndeath, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553\n\n(2d Cir. 1996). In determining whether a medical need is sufficiently serious to be\n\ncognizable as a basis for a constitutional claim for deprivation of medical care, we\n\nconsider factors such as whether a reasonable doctor or patient would find the\n\ninjury important and worthy of treatment, whether the medical condition\n\nsignificantly affects an individual’s daily activities, and whether the illness or\n\ninjury inflicts chronic and substantial pain. See Chance v. Armstrong, 143 F.3d 698,\n\n702 (2d Cir. 1998). In most cases, the actual medical consequences that flow from\n\nthe denial of care are highly relevant in determining whether the denial of\n\ntreatment subjected the detainee to a significant risk of serious harm. See Smith v.\n\nCarpenter, 316 F.3d 178, 187 (2d Cir. 2003).\n\n\n 28\n\f B. Deliberate Indifference\n\n The concept of deliberate indifference has a more complicated history in\n\nthis Circuit. See Darnell, 849 F.3d at 32–36 (explaining how the concept of\n\ndeliberate indifference has evolved in the case law since Farmer v. Brennan, 511\n\nU.S. 825 (1994)). In Darnell, we clarified that deliberate indifference, in the context\n\nof a Fourteenth Amendment due process claim, can be shown by something akin\n\nto recklessness, and does not require proof of a malicious or callous state of mind.\n\n849 F.3d at 33–34. Deliberate indifference, we held, can be established by either a\n\nsubjective or objective standard: A plaintiff can prove deliberate indifference by\n\nshowing that the defendant official “recklessly failed to act with reasonable care\n\nto mitigate the risk that the condition posed to the pretrial detainee even though\n\nthe defendant-official knew, or should have known, that the condition posed an\n\nexcessive risk to [the plaintiff’s] health or safety.” Id. at 35 (emphasis added). This\n\nformulation of the deliberate indifference standard was developed in cases\n\ninvolving unconstitutional conditions of confinement. In Darnell, the plaintiffs\n\ncomplained, inter alia, that the facility where they were detained was unsafe and\n\nunsanitary. Id. at 23–26. Although Darnell did not specifically address medical\n\ntreatment, the same principle applies here. See id. at 33 n.9 (noting that the same\n\n\n 29\n\fstandard applies to claims for deliberate indifference to medical needs because\n\n“deliberate indifference means the same thing for each type of claim under the\n\nFourteenth Amendment”).\n\n A plaintiff must show “something more than mere negligence” to establish\n\ndeliberate indifference in the Fourteenth Amendment context. Weyant v. Okst, 101\n\nF.3d 845, 856 (2d Cir. 1996). Thus, “mere medical malpractice is not tantamount\n\nto deliberate indifference, but it may rise to the level of deliberate indifference\n\nwhen it involves culpable recklessness, i.e., an act or a failure to act . . . that\n\nevinces a conscious disregard of a substantial risk of serious harm.” Cuoco, 222\n\nF.3d at 107 (internal quotation marks and alteration omitted).\n\n Thus, a detainee asserting a Fourteenth Amendment claim for deliberate\n\nindifference to his medical needs can allege either that the defendants knew that\n\nfailing to provide the complained of medical treatment would pose a substantial\n\nrisk to his health or that the defendants should have known that failing to provide\n\nthe omitted medical treatment would pose a substantial risk to the detainee’s\n\nhealth.\n\n Whether the state knew or should have known of the substantial risk of\n\nharm to the detainee is a question of fact subject to demonstration in the usual\n\n\n 30\n\fways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842;\n\nsee also Hathaway, 37 F.3d at 67–69 (whether doctor was deliberately indifferent to\n\ninmate’s serious medical needs was for jury). “A factfinder may conclude that a\n\nprison official knew of a substantial risk from the very fact that the risk was\n\nobvious.” Farmer, 511 U.S. at 842.\n\n Thus, to sustain their § 1983 cause of action, Plaintiffs must plausibly allege\n\nthat they had a sufficiently serious medical need requiring discharge planning\n\nand that the deprivation of such planning was inflicted under circumstances\n\nconstituting deliberate indifference.\n\nIII. Whether Plaintiffs Had Sufficiently Serious Needs Requiring Discharge\n Planning\n\n Plaintiffs have plausibly alleged that they had a sufficiently serious need\n\nfor discharge planning given their serious mental illnesses. Plaintiffs’ mental\n\nillnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood\n\nwhen they go untreated. Without continuous care and daily medication to keep\n\nthem mentally stable, Plaintiffs face serious risk of physical and psychological\n\nharm.\n\n Plaintiffs’ theory that discharge planning is integral to institutional mental\n\n\n\n\n 31\n\fhealth care is supported by their citations to professional organizations in the\n\nmental health field. Many professional organizations that determine appropriate\n\nstandards of mental health care regard discharge planning as an essential\n\ncomponent of care for the institutionalized mentally ill, including not only\n\nsentenced prisoners and civil and criminal detainees with serious mental\n\nillnesses, but also those, whether voluntarily hospitalized or involuntarily\n\ncommitted, who are institutionalized for the very purpose of treating their\n\nmental illnesses. For example, Plaintiffs point to guidance by the American\n\nPsychiatric Association, the primary professional association of psychiatrists in\n\nthe United States and the largest psychiatric professional organization in the\n\nworld, which recognizes that “[t]imely and effective discharge planning is\n\nessential to continuity of care and an integral part of adequate mental health\n\ntreatment.” App’x at 29.\n\n Plaintiffs’ allegations regarding the importance of discharge planning are\n\ncorroborated by what befell them when such planning was not provided to them.\n\nSee Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Because Plaintiffs were not\n\nprovided with discharge plans, Plaintiffs allege they both faced an abrupt\n\ninterruption in their care causing them to suffer significant mental health\n\n\n 32\n\fconsequences. Charles suffered complete psychiatric decompensation shortly\n\nafter being released. His family was forced to call 911 for emergency medical care\n\nand he required two months of hospitalization to regain mental stability. Small\n\nwas somewhat more fortunate. She received treatment before she fully\n\ndecompensated, but she was still forced to check herself into a hospital\n\nemergency room within days of her release and continues to suffer extreme\n\nemotional and psychological distress.\n\n We therefore find plausible Plaintiffs’ allegations that they had serious\n\nmedical needs requiring discharge planning. Of course, those are only\n\nallegations: we leave it to the fact-finder, or to summary judgment after\n\ndiscovery, to determine whether the facts, as developed, prove that Plaintiffs had\n\na serious medical need requiring discharge planning and if so, in what form.\n\nIV. Whether the Defendants’ Failure to Provide Discharge Planning to\n Plaintiffs Constituted Deliberate Indifference\n\n Plaintiffs have also sufficiently alleged that Defendants knew or should\n\nhave known that failing to provide them with discharge planning would cause\n\nPlaintiffs substantial harm. According to Plaintiffs, Defendants knew the serious\n\nnature of Plaintiffs’ mental health conditions; they diagnosed Plaintiffs,\n\n\n\n\n 33\n\fmaintained their medical records, created treatment plans for them, and\n\nprescribed anti-psychotic and anti-depressant medication for them. As noted\n\nabove, Plaintiffs point to guidance by, among others, the American Psychiatric\n\nAssociation and the National Commission on Correctional Health Care, stating\n\nthat discharge planning is an essential component of adequate institutional\n\nmental healthcare for people with Plaintiffs’ illnesses. It is reasonable to infer, at\n\nthis stage, that the defendant clinic directors, as mental health professionals\n\nengaged in providing treatment to prisoners and detainees in an institutional\n\nsetting, were aware of these standards.\n\n Nor is it necessary to resort solely to inference. The policies and protocols\n\ngoverning Defendants and others providing treatment at the Jail themselves\n\ndemand such discharge planning. Both ICE and Orange County have written\n\npolicies recognizing that mental health discharge planning is an essential\n\ncomponent of mental health treatment in institutional settings. ICE’s 2011\n\nPerformance-Based National Detention Standards (revised in 2016) provide that\n\n“[d]etainees, who have received medical care, [been] released from custody or\n\nremoved shall receive a mental health discharge plan, a summary of medical\n\nrecords, any medically necessary medication and referrals to community-based\n\n\n\n 34\n\fproviders as medically appropriate.” App’x at 32 (alterations omitted). Orange\n\nCounty policies similarly require that “[n]o client shall be discharged without a\n\ndischarge plan” which “shall be given to the client upon discharge.” Id. at 130.\n\n Indeed, according to Plaintiffs, Defendants regularly provide discharge\n\nplanning to individuals who are held at the Orange County Detention Center in\n\ncriminal detention in accordance with these standards—demonstrating\n\nDefendants’ understanding that discharge planning is important for mentally ill\n\ninmates. In Charles’s case, the Mental Health Department expressly recognized\n\nthat Charles would have “projected mental health needs” in his Discharge\n\nSummary. Id. at 152.\n\n Thus, Plaintiffs have plausibly alleged that Defendants were fully aware of,\n\nand violated, both Orange County and ICE policies by failing to provide them\n\nwith discharge planning as part of their care. Plaintiffs’ allegations, if proven\n\ntrue, are sufficient to establish that Defendants knew, or should have known, of\n\nthe substantial risk that Plaintiffs would relapse and suffer serious adverse health\n\nconsequences if they were not provided with necessary discharge planning, such\n\nthat a fact-finder could infer “reckless disregard” beyond mere negligence or\n\nmedical malpractice. Weyant, 101 F.3d at 856; see Harrison v. Barkley, 219 F.3d 132,\n\n139 (2d Cir. 2000).\n\n\n 35\n\fV. Issues Remaining for Factual Development\n\n That Plaintiffs have adequately stated a claim does not, of course, mean\n\nthat they have established their entitlement to relief. Plaintiffs will need to\n\nprovide evidence to back up their allegations. Moreover, Defendants have raised\n\nsignificant factual issues that need to be fleshed out through discovery. These\n\ninclude: whether the discharge planning measures Plaintiffs identify should be\n\nprovided as part of in-custody care (rather than undertaken upon or after\n\nrelease), the medical effects of a temporary deprivation of psychotropic\n\nmedication, the causal relationship between the alleged interruption in Plaintiffs’\n\ntreatment and the consequences they complain of, and whether the\n\ncircumstances of Plaintiffs’ release were so unexpected that Defendants could not\n\nhave anticipated, and properly planned for, their release at the time it occurred.\n\nMoreover, Plaintiffs’ own allegations about the existence of written Orange\n\nCounty policies call into question whether Plaintiffs can establish their contention\n\nthat there is a consistent policy, custom, or practice of denying such planning to\n\nimmigrant detainees. After discovery, the district court will be in a better position\n\nto determine the precise parameters of the treatment that should have been\n\nprovided; whether the failure to provide any mandated care was attributable to\n\nDefendants’ deliberate indifference, mere negligence, or unforeseen and\n\n\n 36\n\funforeseeable circumstances; and what, if any, damages were caused by any\n\ndereliction on the part of Defendants.12 But, at the pleading stage, we hold that\n\nPlaintiffs have adequately stated a Fourteenth Amendment substantive due\n\nprocess claim.\n\n CONCLUSION\n\n For the foregoing reasons, we VACATE the district court’s opinion and\n\nREMAND for proceedings consistent with this opinion.\n\n\n\n\n12\n In addition, the district court may consider, on remand, various issues it did\nnot reach in its September 29, 2017 opinion, and on which we express no opinion,\nsuch as: (1) whether the Plaintiffs adequately pled a county policy, practice, or\ncustom for purposes of Monell liability; (2) whether Plaintiffs have adequately\nstated a claim against Elizondo; and (3) whether Elizondo is entitled to qualified\nimmunity.\n\n 37\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Michelet CHARLES, Carol Small, Plaintiffs-Appellants, v. ORANGE COUNTY, State of New York, Orange County Sheriff's Department, Orange County Department of Mental Health, Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendants-Appellees, Nicole Kaye, Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-3506-pr\\nCharles v. Orange County\\n\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n\\n August Term, 2018\\n\\n Argued: September 25, 2018\\n Decided: May 24, 2019\\n\\n No. 17-3506-pr\\n\\n\\n\\n MICHELET CHARLES, CAROL SMALL,\\n\\n Plaintiffs-Appellants,\\n\\n — v. —\\n\\n ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT,\\n ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, CARMEN ELIZONDO, FORMER\\n CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual\\n capacity,\\n\\n Defendants-Appellees,\\n\\n NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her\\n individual capacity,\\n\\n Defendant.\\n\\fB e f o r e:\\n\\n LYNCH and HALL, Circuit Judges, and BOLDEN, District Judge.*\\n\\n\\n\\n\\n Plaintiffs-Appellants Michelet Charles and Carol Small were formerly civil\\nimmigration detainees at the Orange County Correctional Facility, where they\\nwere treated for serious mental illnesses. They instituted this civil rights action\\nagainst Orange County and some of its agencies and officials under 42 U.S.C.\\n§ 1983, complaining that the failure to engage in discharge planning or to provide\\nthem with discharge plans upon release violated their substantive due process\\nrights under the Fourteenth Amendment. The United States District Court for the\\nSouthern District of New York (Nelson S. Román, J.) granted the Defendants’\\nmotion to dismiss the complaint. We VACATE and REMAND for further\\nproceedings.\\n\\n\\n\\n DANIEL J. STUJENSKE, Simpson Thacher & Bartlett LLP, New\\n York, NY (Thomas C. Rice, Simpson Thacher & Bartlett\\n LLP, on the brief), Laura F. Redman, Antony P. F. Gemmell,\\n New York Lawyers for the Public Interest, New York, NY\\n for Plaintiffs-Appellants Michelet Charles and Carol Small.\\n\\n ANTHONY CARDOSO, Orange County Attorney’s Office, Goshen,\\n NY, for Defendants-Appellees Orange County, State of\\n New York, Orange County Sheriff’s Department, Orange\\n County Department of Mental Health and Carmen\\n Elizondo, Former Clinic Director, Orange County\\n Correctional Facility, in her individual capacity.\\n\\n\\n*\\n Judge Victor A. Bolden, of the United States District Court for the District of\\nConnecticut, sitting by designation.\\n\\n 2\\n\\fAaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick,\\n P.L.L.C., Washington, DC (Ira A. Burnim, Judge David C.\\n Bazelon Center for Mental Health Law, Washington, DC,\\n on the brief), for Amici Curiae American Psychiatric\\n Association, American Academy of Psychiatry and the\\n Law, American Psychological Association, American\\n Medical Association, National Association of Social\\n Workers, American Public Health Association, and Judge\\n David L. Bazelon Center for Mental Health Law, in\\n support of Plaintiffs-Appellants.\\n\\nJamie A. Levitt, Morrison & Foerster LLP, New York, NY, for\\n Amici Curiae The Bronx Defenders, Brooklyn Defender\\n Services, Community Initiatives for Visiting Immigrants\\n in Confinement, Detention Watch Network, The Florida\\n Justice Institute, Inc., Human Rights First, Immigrant\\n Defense Project, The Immigrant Rights Clinic of\\n Washington Square Legal Services, Inc., at NYU Law\\n School, the Kathryn O. Greenberg Immigration Justice\\n Clinic at the Benjamin N. Cardozo School of Law, The\\n Legal Aid Society of New York, The Prison Law Office,\\n Prisoners’ Legal Services of New York, and the Urban\\n Justice Center Mental Health Project, in support of\\n Plaintiffs-Appellants.\\n\\nAlexander M. Wilson, New York State Sheriffs’ Association,\\n Albany, NY for Amicus Curiae New York State Sheriffs’\\n Association, in support of Defendants-Appellees.\\n\\n\\n\\n\\n 3\\n\\fGERARD E. LYNCH, Circuit Judge:\\n\\n The question before us is whether the Plaintiffs-Appellants, Michelet\\n\\nCharles and Carol Small, have stated a plausible claim for relief under the\\n\\nFourteenth Amendment for deliberate indifference to their serious medical\\n\\nneeds. Plaintiffs were confined for many months as civil immigration detainees at\\n\\nthe Orange County Correctional Facility, where they received treatment for their\\n\\nserious mental health disorders. Defendants-Appellees are Orange County, the\\n\\nmunicipality that oversees the Orange County Correctional Facility (“the Jail”);\\n\\nthe Orange County Sheriff’s Office, the specific entity that contracts with the\\n\\nFederal Government to house detainees in the Jail; the Orange County\\n\\nDepartment of Mental Health, the agency responsible for providing mental\\n\\nhealth services to people confined at the Jail; and Carmen Elizondo, the Clinical\\n\\nDirector at the Jail.1 Plaintiffs filed a complaint in the United States District Court\\n\\nfor the Southern District of New York alleging that the Defendants, who were\\n\\nresponsible for providing them with medical care while they were detained at the\\n\\nJail, failed to provide them with mental health discharge planning before their\\n\\n\\n\\n1\\n The parties stipulated to the dismissal of this appeal with prejudice with respect\\nto former defendant Nicole Kaye.\\n\\n 4\\n\\frelease from custody, in violation of the Fourteenth Amendment’s Due Process\\n\\nClause. Plaintiffs seek relief under 42 U.S.C. § 1983.\\n\\n The district court (Nelson S. Román, J.) dismissed Plaintiffs’ complaint for\\n\\nfailure to state a claim. For the reasons that follow, we VACATE that judgment,\\n\\nand REMAND for further proceedings.\\n\\n BACKGROUND\\n\\n Both Plaintiffs suffer from serious, ongoing mental illnesses.2 Each Plaintiff\\n\\nwas arrested by agents of the U.S. Immigration and Customs Enforcement\\n\\n(“ICE”), the federal law enforcement agency charged with the detention and\\n\\nremoval of illegal immigrants. While awaiting their removal proceedings,\\n\\nPlaintiffs were detained at the Jail, a county detention facility that houses civil\\n\\nimmigration detainees pursuant to an intergovernmental agreement between ICE\\n\\nand Orange County. During their detention, Plaintiffs were treated for their\\n\\nillnesses, receiving counseling and psychotropic medication. However, the\\n\\ntreatment Plaintiffs received while they were in custody did not include\\n\\n\\n\\n\\n2\\n On this appeal from the dismissal of a complaint for failure to state a claim, we\\ntake the allegations in the complaint as true and construe them in the light most\\nfavorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009).\\n\\n 5\\n\\fdischarge planning, which Plaintiffs allege is a routine and necessary component\\n\\nof institutional mental health treatment. Plaintiffs claim that as a result of\\n\\nDefendants’ failure to provide them with discharge planning while they were in\\n\\ncustody, they suffered serious mental health consequences shortly after their\\n\\nrelease.\\n\\nI. Michelet Charles\\n\\n Plaintiff Michelet Charles is a 55-year old lawful permanent resident who\\n\\nhas lived in the United States for 34 years. Charles has suffered from bipolar and\\n\\nschizoaffective disorders since around 1984. For years, he managed his illness\\n\\nthrough regular mental health care. When Charles is not treated for his illnesses,\\n\\nhe suffers from hallucinations, delusions, and periods of mania and depression.\\n\\n In July 2014, Charles was arrested by ICE officials and detained at the Jail\\n\\nfor 363 days during the pendency of his immigration case.3 When Charles\\n\\n\\n\\n\\n3\\n ICE and Orange County confine hundreds of people in civil immigration\\ndetention at the Orange County Detention Center every year pursuant to an\\nInter-Governmental Services Agreement between ICE and Orange County. Civil\\nimmigration detainees are held in custody to assure their presence throughout\\nthe administrative removal proceedings. Such detainees are not charged with\\ncrimes. Nevertheless, civil immigration detainees are housed in conditions\\nsimilar to those experienced by detainees awaiting trial on criminal charges.\\n\\n 6\\n\\fentered the detention center, medical personnel at the facility diagnosed him\\n\\nwith bipolar disorder with psychotic features. During his detention, Defendants\\n\\nprovided Charles with psychiatric care, which included meeting with a\\n\\npsychiatrist every three weeks in order to monitor his condition, and daily\\n\\npsychotropic medication to keep him stable. Charles’s treatment was\\n\\ndocumented by the Jail Clinic in an “Intervention/Care Plan” which listed his\\n\\ndiagnosis, the types of counseling Charles received, the medication he required,\\n\\nand any suicidal or harmful tendencies he had.\\n\\n On July 22, 2015, Charles was brought from the Jail to New York City for\\n\\nan appearance at the Immigration Court in lower Manhattan. Prior to his\\n\\nimmigration hearing, Defendants had not provided Charles with any plan for his\\n\\ncontinued mental health care after discharge, a list of his medications, a list of\\n\\noutside referrals, any other information about the medication and counseling he\\n\\nreceived while detained, or assistance or information relevant to his obtaining\\n\\nfuture treatment for his known medical condition. Nor were any such materials\\n\\nprovided to Charles at or after his hearing. Charles succeeded at his immigration\\n\\nhearing4 and was released directly from the court with his identification and\\n\\n4\\n The record does not reflect the precise disposition of the matter.\\n\\n 7\\n\\fnothing more. The ICE Deportation Officer who attended the hearing told\\n\\nCharles’s attorney that ICE did not have any medication for Charles, and that he\\n\\nshould return to the Jail if he needed to obtain a supply of his medication.\\n\\n The day after his release, Charles and his daughter drove over 65 miles\\n\\nfrom their home to the Jail to obtain Charles’s psychiatric medication. When\\n\\nCharles’s daughter asked an employee at the front desk of the Jail for her father’s\\n\\nmedication, the employee refused to provide it, claiming that the person who had\\n\\ntransported Charles to the Immigration Court was responsible for providing him\\n\\nwith a continuing supply of medication. The Orange County employee also\\n\\ninformed Charles and his daughter that as a matter of institutional policy, after a\\n\\nperson is released from the facility, the Jail can no longer provide him with\\n\\nmedication.\\n\\n Charles’s immigration attorney then contacted the ICE Deportation Officer\\n\\nagain, requesting that Charles be provided with a supply of medication. The\\n\\nOfficer did not respond to the inquiry. According to Charles’s medical file from\\n\\nthe Jail, on July 23, 2015, the day after his release, and the same day that he\\n\\nvisited the facility with his daughter, a clinical social worker at the Jail signed a\\n\\ndocument entitled “Continuing Care Plan/Discharge Summary” (“Discharge\\n\\n\\n 8\\n\\fSummary”) for Charles. The Discharge Summary listed Charles’ diagnosis and\\n\\nexpressly anticipated that Charles would have future mental health needs\\n\\nincluding medication, psychiatric treatment, and substance abuse treatment.\\n\\nHowever, neither Charles nor his attorney was given a copy of the Discharge\\n\\nSummary.\\n\\n After his release, without immediate access to his prescription anti-\\n\\npsychotic and anti-depressant medications and counseling, Charles soon began\\n\\npsychologically decompensating. He exhibited bizarre behavior, was\\n\\ndisorganized, and mumbled when he spoke. His family reported that he was\\n\\nmanic, anxious, and paranoid.\\n\\n By August 4, 2015, Charles was experiencing symptoms of psychosis, and\\n\\nhis ability to control his thoughts and emotions was so impaired that he lost\\n\\ncontact with reality. On that date, Charles’s family called 911 for emergency\\n\\nmedical assistance. The police officers who responded to the call transported him\\n\\nto the emergency room at a nearby hospital. The next day, Charles was\\n\\nhospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks\\n\\nHospital. His admission record states that he had worsening aggressive,\\n\\ndisorganized, and bizarre behavior, and was preoccupied with paranoid ideas. It\\n\\n\\n 9\\n\\ftook two months in the hospital for Charles’s condition to stabilize and for him to\\n\\nreturn to his baseline mental state.\\n\\nII. Carol Small\\n\\n Plaintiff Carol Small is a 45-year old lawful permanent resident of the\\n\\nUnited States. Before she was detained, Small lived on her own and supported\\n\\nherself as a hairdresser in the Bronx.\\n\\n Small was detained at the Jail in May 2015. After about a month of\\n\\ndetention, Small began experiencing symptoms of severe mental illness,\\n\\nincluding visual and auditory hallucinations. She became extremely paranoid\\n\\nand delusional, believing that she was being monitored by the government\\n\\nthrough a chip implanted in her tooth, that there was a government conspiracy to\\n\\npoison her, and that poison was coming through the vents in the Jail. In late June\\n\\n2015, a psychiatrist at the Jail diagnosed Small with paranoid schizophrenia.\\n\\nSimilarly to Charles, her diagnosis, medications, and counseling needs were\\n\\ndocumented by the Jail Clinic in a document titled “Intervention/Care Plan.” But\\n\\nlike Charles, Small was not provided with a copy of that document.\\n\\n In September 2015, Small was transferred to the inpatient ward at Kings\\n\\nCounty Hospital for intensive treatment for her mental illness. In October, after\\n\\n\\n 10\\n\\fher condition stabilized, she was transferred back to the Jail. Upon her return,\\n\\nmedical employees of the Orange County Department of Mental Health provided\\n\\nSmall with medically necessary treatment and continued to prescribe and\\n\\nadminister her daily prescription medication, which kept her stable.\\n\\n On January 11, 2016, an Immigration Judge granted Small immigration\\n\\nrelief and ordered her release.5 Small was released from the Jail on January 19,\\n\\n2016 at around 6:30 PM, in below-freezing temperatures, with $80 in cash. Small\\n\\nwas not given an interim supply of her prescribed medicines, a list of her\\n\\nmedications, a description of the treatment she had received while detained, or a\\n\\nlist of outside referrals or providers for continuing care. During the roughly six\\n\\nmonths in which Small was treated for her mental illness at the Jail, she was not\\n\\nprovided with any discharge planning.\\n\\n Upon her release, Small took the train from Orange County to Penn\\n\\nStation. She stayed briefly with family members, and then a social worker from\\n\\nthe organization that had provided Small with immigration representation\\n\\narranged for her to live in a shelter. While Small was struggling to re-establish\\n\\nher life after release, she was extremely distressed and worried for her own\\n\\n5\\n Again, the record does not describe the exact nature of the disposition.\\n\\n 11\\n\\fhealth and the possibility of relapsing without the medication she had been\\n\\ntaking to treat her mental illness. On January 21, 2016, Small checked herself into\\n\\nthe emergency room at North Central Bronx Hospital in an effort to obtain\\n\\nmedication. Because Small had written down a list of the medications she was\\n\\ntaking while detained, the hospital was able to prescribe her the same\\n\\nmedications without a full psychological evaluation. These events were\\n\\nemotionally distressing for her.\\n\\nIII. Procedural History\\n\\n Plaintiffs filed a complaint (the “Complaint”) on July 12, 2016, asserting\\n\\nviolations of the Fourteenth Amendment. They claim that substantive due\\n\\nprocess requires that civil detainees be afforded adequate medical care during\\n\\ntheir detention, and that their medical care should have included discharge\\n\\nplanning, because of their serious mental illnesses. They allege that discharge\\n\\nplanning is regarded by medical and psychological professionals as an essential\\n\\npart of mental health care, especially in institutional settings, where it is\\n\\nnecessary to mitigate the risks of interrupted treatment while patients transition\\n\\nfrom treatment within the institution to other sources of treatment. Plaintiffs\\n\\ncontend that by failing to provide them with discharge planning, Defendants\\n\\n\\n 12\\n\\fwere deliberately indifferent to the risk that Plaintiffs would relapse upon release\\n\\nand face mental decompensation and other serious health consequences.\\n\\n On January 30, 2017, Defendants moved to dismiss the entire Complaint\\n\\nfor failure to state a claim. Defendants argued that there is no established\\n\\nsubstantive due process right to the post-release measures inherent in discharge\\n\\nplans. On their view, the government’s duty of care ends the instant the inmate\\n\\nwalks through the prison gates and into the civilian world, because that is when\\n\\nthe inmate’s ability to secure medication or care on his own behalf is restored.\\n\\n On September 29, 2017, the district court granted Defendants’ motions.6 See\\n\\nCharles v. County of Orange, No. 16-CV-5527 (NSR), 2017 WL 4402576 (S.D.N.Y.\\n\\nSept. 29, 2017). The district court construed the Complaint as stating three claims\\n\\nunder § 1983: (1) a Monell claim against Orange County, the Orange County\\n\\nSheriff’s Department, and the Orange County Department of Mental Health (the\\n\\n“County Defendants”) alleging a policy, practice and custom of providing\\n\\nconstitutionally inadequate health care to persons held in civil immigration\\n\\ndetention; (2) a claim against all Defendants for deliberate indifference to\\n\\n\\n\\n6\\n Defendants-Appellants filed one joint motion and former defendant Kaye filed a\\nseparate motion.\\n\\n 13\\n\\fPlaintiffs’ serious medical needs by discharging them from the Jail without\\n\\nadequate discharge plans; and (3) supervisory liability claims against Kaye and\\n\\nElizondo (the “Individual Defendants”), successive clinic directors at the Jail,\\n\\nwho Plaintiffs claim were responsible for providing them with medical treatment\\n\\nwhile they were detained.\\n\\n The district court recognized that the Fourteenth Amendment Due Process\\n\\nClause requires a correctional facility to provide medical care to detainees while\\n\\nthey are in custody. But it understood the Complaint to claim that Defendants\\n\\ndid not provide Plaintiffs with necessary medical treatment after they were\\n\\nreleased. The district court concluded that even though the Plaintiffs had\\n\\nadequately pled that the Defendants were deliberately indifferent to their serious\\n\\nmedical needs, the standard they would have to meet if they alleged a\\n\\nconstitutional violation while they were in custody, Plaintiffs’ claims failed\\n\\nbecause the failure of treatment did not “shock the conscience.” Since Plaintiffs’\\n\\nsubstantive Fourteenth Amendment claim failed, the district court declined to\\n\\naddress the Monell claim against the County Defendants, or the supervisory\\n\\nliability claim against the Individual Defendants.\\n\\n\\n\\n\\n 14\\n\\f Because the district court construed Plaintiffs’ allegations as regarding\\n\\ndeliberate indifference to post-custody medical care, rather than deliberate\\n\\nindifference to needed in-custody medical care, the district court applied the\\n\\nwrong standard in determining whether Plaintiffs adequately pled a Fourteenth\\n\\nAmendment violation. We therefore vacate the district court’s dismissal of the\\n\\nComplaint and remand for further proceedings.\\n\\n DISCUSSION\\n\\n We review de novo a district court’s grant of a motion to dismiss pursuant\\n\\nto Rule 12(b)(6) and grant of a motion for judgment on the pleadings under Rule\\n\\n12(c). See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156–57 (2d Cir. 2017);\\n\\nKirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). In considering\\n\\nDefendants’ motions, we accept as true all factual allegations in the Complaint\\n\\nand draw all reasonable inferences in Plaintiffs’ favor. See id.\\n\\n At this stage, we need decide only whether Plaintiffs’ claims are facially\\n\\nplausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial\\n\\nplausibility when the plaintiff pleads factual content that allows the court to\\n\\ndraw the reasonable inference that the defendant is liable for the misconduct\\n\\nalleged. The plausibility standard is not akin to a probability requirement, but it\\n\\n\\n 15\\n\\fasks for more than a sheer possibility that a defendant has acted unlawfully.” Id.\\n\\n(internal citations and quotation marks omitted).\\n\\nI. Discharge Planning as In-Custody Care\\n\\n On appeal, Plaintiffs argue that the district court misconstrued the\\n\\nallegations in their Complaint and therefore applied an incorrect legal analysis to\\n\\ntheir Fourteenth Amendment claims. The district court construed Plaintiffs’\\n\\nComplaint as contending that the Defendants owed Plaintiffs a duty to provide\\n\\nthem with limited medical care after they had been released from custody.\\n\\n Plaintiffs argue that the deprivation of care that they allege in fact occurred\\n\\nduring their detention, because discharge planning occurs before release from\\n\\ncustody. Their argument is consistent with the Complaint, which clearly purports\\n\\nto allege an in-custody deprivation of care. Whether Plaintiffs’ claim for\\n\\ndeprivation of discharge planning, which negatively affected them after their\\n\\nrelease from custody, can be considered a claim for in-custody deprivation of\\n\\ncare is an important question in this case.\\n\\n This distinction matters because the duties state actors owe to individuals\\n\\ndiffer depending on whether the complainant was in the state’s custody. As a\\n\\ngeneral matter, the state is under no constitutional duty to provide substantive\\n\\n\\n 16\\n\\fservices to free persons within its borders. See DeShaney v. Winnebago Cty. Dep’t of\\n\\nSoc. Servs., 489 U.S. 189, 196 (1989). But when a person is involuntarily held in\\n\\nstate custody, and thus wholly dependent upon the state, the state takes on an\\n\\naffirmative duty to provide for his or her “safety and general well-being.” Id. at\\n\\n199–200. This “special relationship exception” imposes a duty on the state in\\n\\nrecognition of “the limitation which [the state] has imposed on [the person’s]\\n\\nfreedom to act on his own behalf.” Id. at 200; see also Matican v. City of New York,\\n\\n524 F.3d 151, 156 (2d Cir. 2008).\\n\\n In Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court held that the\\n\\nstate has a constitutional obligation to provide medical care to persons it is\\n\\npunishing by incarceration. When the state is deliberately indifferent to the\\n\\nmedical needs of a person it has taken into custody, it violates the Eighth\\n\\nAmendment’s prohibition on cruel and unusual punishment. Id. at 104. The\\n\\nSupreme Court subsequently extended the protections for prisoners established\\n\\nin Estelle to civil detainees under the Due Process Clause of the Fourteenth\\n\\nAmendment, reasoning that persons in civil detention deserve at least as much\\n\\nprotection as those who are criminally incarcerated. See Youngberg v. Romeo, 457\\n\\nU.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).\\n\\n\\n 17\\n\\fThe Ninth Circuit has extended the reasoning of Estelle and DeShaney beyond the\\n\\nmoment of release from custody, holding in Wakefield v. Thompson, 177 F.3d 1160,\\n\\n1164 (9th Cir. 1999), that the state owes an affirmative duty to provide an\\n\\noutgoing prisoner requiring medication with a “supply sufficient to ensure that\\n\\nhe has that medication available during the period of time reasonably necessary\\n\\nto permit him to consult a doctor and obtain a new supply.” The Ninth Circuit\\n\\nbased this holding on a matter of common sense: “that a prisoner’s ability to\\n\\nsecure medication ‘on his own behalf’ is not necessarily restored the instant he\\n\\nwalks through the prison gates and into the civilian world.” Id. This Court,\\n\\nhowever, has never held that the state’s duties to an inmate or detainee extend\\n\\nbeyond their release.\\n\\n Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential\\n\\npart of mental healthcare in institutional settings” and “Defendants are\\n\\nconstitutionally obliged to provide Plaintiffs with adequate medical care while\\n\\nthey are confined to immigration detention.” App’x at 10. Plaintiffs allege that\\n\\ndischarge planning includes providing the detainee with (1) a summary of\\n\\nmedical records (including admission diagnosis, discharge diagnosis, all\\n\\ndiagnostic test results, a list of medications prescribed, a summary of care\\n\\n\\n 18\\n\\fprovided, a summary of the detainee’s response to treatment, medical\\n\\ncomplications encountered, and any outside healthcare referrals); (2) an interim\\n\\nsupply of medication; and (3) a continuity of care plan, including referrals to\\n\\ncommunity based providers. Plaintiffs’ Complaint alleges that the provision of\\n\\nthese services and documents should begin being provided to the patient at the\\n\\noutset of in-custody medical treatment, and continue during the course of\\n\\ntreatment.\\n\\n Plaintiffs’ theory raises a legal question of first impression in this Circuit:\\n\\nwhether a claim of constitutional entitlement to discharge planning, the alleged\\n\\ninadequacy of which causes post-release harm, can be considered a claim to in-\\n\\ncustody care cognizable under the “special relationship” exception. Discharge\\n\\nplanning is fundamentally different from other measures or types of care to\\n\\nwhich detainees may be entitled while in custody, in that its entire purpose is to\\n\\nprevent post-release harm. Given the reality that the tangible harm Plaintiffs\\n\\nsuffered was a direct result of their lack of medication and medical records after\\n\\nrelease from custody, the District Court understandably construed the Complaint\\n\\nas asserting “a right to post-release measures inherent in discharge planning.”\\n\\nCharles, 2017 WL 4402576, at *8.\\n\\n\\n 19\\n\\f Nevertheless, discharge planning is not so different from other measures\\n\\nthe state takes in providing care to those in its custody as to be categorically\\n\\nbeyond the reach of the “special relationship” exception. If discharge planning is\\n\\nto occur at all, it must, by definition, occur prior to release from custody. Whether\\n\\nthe three components of discharge planning that Plaintiffs identify are an\\n\\n“essential part” of mental healthcare, as Plaintiffs allege, is a factual matter that\\n\\nmay be proven at a later stage of litigation by expert testimony. If discharge\\n\\nplanning is essential to providing care for mentally ill individuals, the rationale\\n\\nfor the “special relationship” exception applies to this need no less than the need\\n\\nfor other types of care. As the Supreme Court recognized in Estelle, “an inmate\\n\\nmust rely on prison authorities to treat his medical needs; if the authorities fail to\\n\\ndo so, those needs will not be met.” 429 U.S. at 103. The Supreme Court in Estelle\\n\\nwas concerned with failures to provide care that may result in death or\\n\\n“unnecessary” “pain and suffering.” Id. The failure to provide discharge\\n\\nplanning, no less than other forms of care, may inflict such suffering. In this case,\\n\\nfurthermore, it cannot be said that when the County released Plaintiffs, it “placed\\n\\n[them] in no worse position than that in which [they] would have been had it not\\n\\nacted at all . . .” DeShaney, 489 U.S. at 201; see App’x at 18, 21–22 (Charles); id. at\\n\\n24 (Small).\\n\\n 20\\n\\f That the harmful consequences of a lack of discharge planning occur after\\n\\nrelease from custody does not remove discharge planning from the purview of\\n\\nthe “special relationship” exception. For example, we affirmed application of this\\n\\nexception where an inmate died a few weeks after being released from custody,\\n\\nallegedly due to the facility’s inadequate medical treatment. Rodriguez ex rel.\\n\\nEstate of Darby v. Walrath, 94 F. App’x 864 (2d Cir. 2004).8\\n\\n Common sense and experience further support Plaintiffs’ theory that\\n\\ndischarge planning is part of in-custody care. It comports with common sense\\n\\nthat someone with a serious mental illness would need to receive a summary of\\n\\nhis medical records, including documents indicating his diagnosis and his\\n\\nprescribed medications. These aspects of a discharge plan are expected parts of\\n\\n8\\n Similarly, in Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000), the\\nplaintiff had surgery to remove kidney stones while incarcerated. He was\\nreleased on parole shortly thereafter, but before Lugo’s treating physician was\\nable to remove a metal stent from his kidney. Id. Noting that Lugo “was\\nundergoing continuing treatment at the time he was released,” the district court\\nheld that releasing Lugo with the stent in his body, and without either allowing\\nhim to return to Albany for treatment or forwarding his medical records to\\nanother facility to facilitate the performance of the operation there constituted\\ndeliberate indifference. Id. Although Plaintiffs’ theory in this case does not\\nrequire us to reach the question of whether the state’s duty of care extends\\nbeyond a detainee’s release from custody, as the district court in Lugo held, the\\nfacts in Lugo illustrate how a failure to provide certain in-custody care may have\\nharmful post-release effects that are inextricably bound up with that in-custody\\ndeprivation.\\n\\n 21\\n\\fwhat non-incarcerated patients seek, and pay for, in visiting doctors and\\n\\nhospitals for treatment. Those who have seen a doctor, visited a hospital\\n\\nemergency room, undergone surgery, or received any kind of medical treatment\\n\\nfor a serious physical, emotional, dental or visual problem, understand the need\\n\\nfor, and have likely been provided, documentation of the medications prescribed\\n\\nto them, their diagnosis, and a copy of any test results, during the course of their\\n\\ntreatment. Thus, to the extent Plaintiffs complain that they were not provided\\n\\nwith documentation regarding the treatment they received while in custody,\\n\\ntheir complaint relates to the provision of in-custody medical care.\\n\\n These common-sense understandings are consistent with expert medical\\n\\nopinion. Plaintiffs point to a broad array of professional mental health and\\n\\nmedical associations who agree that the standard of reasonable and adequate\\n\\nmedical care for detained persons includes providing the detainee with interim\\n\\nmedications and referrals while they are still in custody. For example, the American\\n\\nPsychiatric Association views discharge planning as in-custody care, stating that\\n\\nit “needs to begin as part of the initial treatment plan.” Brief of Bronx Defenders\\n\\net al. as Amici Curiae Supporting Appellants at 21. The American Association of\\n\\nCommunity Psychiatrists says that “it is imperative that any psychiatric\\n\\ntreatment provided during a period of incarceration include planning for post-\\n\\n 22\\n\\frelease follow-up care in the community.” App’x at 30 (emphasis added). The\\n\\nNational Commission on Correctional Health Care, from which the Jail has\\n\\nsought and obtained accreditation, defines discharge planning as “the process of\\n\\nproviding sufficient medications for short-term continuity upon release and\\n\\narranging for necessary follow-up mental health services before the inmate’s release\\n\\nto the community.” Id. at 31 (emphasis added). Such expert medical opinion\\n\\nsupports the plausibility of Plaintiffs’ claim of a deprivation of in-custody care.\\n\\n We also find plausible Plaintiffs’ contention that the provision of interim\\n\\nmedication and referrals is part of the treatment that should have been provided\\n\\nto them while they were in custody. The American Psychiatric Association, the\\n\\nAmerican Academy of Psychiatry and the Law, the American Psychological\\n\\nAssociation, the American Medical Association, the National Association of\\n\\nSocial Workers, the American Public Health Association, and the Judge David L.\\n\\nBazelon Center for Mental Health (collectively the “APA Amici”) wrote in\\n\\nsupport of Plaintiffs to explain that discharge planning, which includes a\\n\\nsufficient quantity of medication to allow continuous use, conducting a pre-\\n\\ndischarge assessment, establishing appointments with community providers, and\\n\\nensuring that medical records are effectively transferred to community\\n\\nproviders, is an essential component of minimally adequate mental health care\\n\\n\\n 23\\n\\ffor institutional patients. APA Amicus Brief at 13–14. These views are consistent\\n\\nwith how we think of medical services in a non-custodial setting. Doctors\\n\\nroutinely provide their patients with instructions on how to treat their illnesses\\n\\nafter they leave the doctor’s office, provide their patients with referrals to other\\n\\nhealthcare providers when necessary, and refill their patients’ prescriptions so as\\n\\nto avoid a lapse in care. Such services are particularly essential for patients who\\n\\nare hospitalized or otherwise confined, to make possible continuity of care after\\n\\ntheir release.\\n\\n That discharge planning is supposed to occur before release is also\\n\\nreferenced in a variety of guidelines and regulations promulgated by correctional\\n\\nauthorities. For example, ICE’s own Performance Based National Detention\\n\\nStandards require discharge planning prior to release.9\\n\\n\\n Thus, taking Plaintiffs’ allegations as true and drawing all reasonable\\n\\n\\n\\n9\\n That the contents of a discharge plan or package may be provided at or about\\nthe time of release does not defeat the claim that the preparation and planning\\nfor after-care is an inherent part of proper medical treatment. That a package of\\nafter-care instructions, medication, and medical equipment such as dressings or\\nbandages is provided to a paying patient by a staff member on the way out of an\\nemergency room or doctor’s office by a nurse or receptionist, rather than in the\\ntreatment room itself by the primary care physician, does not mean that it is not\\nan inherent part of the treatment required of the doctor or hospital; the same is\\ntrue for a patient who is in custody.\\n\\n 24\\n\\finferences in their favor, we find that Plaintiffs have plausibly alleged that\\n\\ndischarge planning is an essential part of in-custody care. We conclude that\\n\\ndespite the forward-looking nature of discharge planning, a claim for damages\\n\\ncaused by the lack of it can be considered a claim for deprivation of in-custody\\n\\ncare for purposes of the “special relationship” exception. It will be for Plaintiffs to\\n\\nprove to a fact-finder, on remand, that the care they complain of is the type that\\n\\nshould have been provided to them during their detention.10\\n\\n\\nII. The Appropriate Standard for the Deprivation of In-Custody Care\\n\\n Once we accept that Plaintiffs’ theory regards the adequacy of medical care\\n\\nPlaintiffs received while in custody, the legal framework that applies to their claim\\n\\nbecomes clear. It is well established that when the state takes a person into\\n\\ncustody, severely limiting his ability to care for himself, and then is deliberately\\n\\nindifferent to his medical needs, the Eighth Amendment’s proscription against\\n\\n\\n\\n10\\n In recognizing that Plaintiffs’ claim for deprivation of discharge planning may\\nbe cognizable under the “special relationship” exception, we do not hold that any\\ndetainee who receives medical treatment while detained and subsequently\\nsuffers a potentially preventable health problem may assert a Fourteenth\\nAmendment claim by alleging inadequate discharge planning. The facts alleged\\nin this case show a clear causal link and temporal proximity between the lack of\\ndischarge planning and the negative effects on Plaintiffs, in addition to a serious\\nmedical need for discharge planning and deliberate indifference to that need, as\\ndiscussed below.\\n\\n 25\\n\\fthe unnecessary and wanton infliction of pain is violated. Estelle, 429 U.S. at 104.\\n\\nThat is true whether the deliberate indifference is manifested by prison doctors in\\n\\ntheir response to the prisoner’s needs, or by prison guards who intentionally\\n\\ndeny or delay access to medical care or intentionally deny or delay access to the\\n\\ntreatment once prescribed. Id. at 104–05. The Estelle Court concluded that to state\\n\\na cause of action under § 1983 for violations of the Eighth Amendment’s Cruel\\n\\nand Unusual Punishment Clause, a prisoner must show that the state was\\n\\ndeliberately indifferent to his or her medical needs. Id. at 105. As discussed\\n\\nabove, pursuant to the Due Process Clause of the Fourteenth Amendment, the\\n\\nSupreme Court has extended to civil detainees Estelle’s protection for prisoners\\n\\nunder the Eighth Amendment. See Youngberg, 457 U.S. at 321–22; City of Revere,\\n\\n463 U.S. at 244. Thus, those in civil detention, as were Plaintiffs in this case, are\\n\\nalso afforded a right to be free from deliberate indifference to their serious\\n\\nmedical needs.\\n\\n “In order to establish a violation of a right to substantive due process, a\\n\\nplaintiff must demonstrate not only government action but also that the\\n\\ngovernment action was so ‘egregious, so outrageous, that it may fairly be said to\\n\\nshock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.\\n\\n2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The\\n\\n 26\\n\\fSupreme Court has held that the point of conscience shocking is reached when\\n\\ngovernment actors are deliberately indifferent to the medical needs of pretrial\\n\\ndetainees. Lewis, 523 U.S. at 849–50; see Estelle, 429 U.S. at 104–06; City of Revere,\\n\\n463 U.S. at 244. In this particular context, “deliberately indifferent conduct” is\\n\\n“egregious enough to state a substantive due process claim.” Lewis, 523 U.S. at\\n\\n849–50. A court need not, therefore, conduct a separate analysis, over and above\\n\\nthe deliberate indifference analysis, of whether the state’s conduct “shocks the\\n\\nconscience.”11\\n\\n In accepting, at this stage, Plaintiffs’ theory that discharge planning is an\\n\\nessential part of in-custody medical care and that Plaintiffs were therefore\\n\\ndeprived of adequate medical care while in state custody, Plaintiffs fall well\\n\\nwithin the “special relationship” exception. Therefore, Plaintiffs’ Fourteenth\\n\\nAmendment claim must meet two requirements: (1) that Plaintiffs had a serious\\n\\nmedical need for discharge planning, and (2) that the Defendants acted with\\n\\n\\n11\\n We have applied a separate “shocks the conscience” analysis in cases that do not\\ninvolve the medical needs of those the state has taken into custody. See, e.g., Matican,\\n524 F.3d at 155 (requiring plaintiff to show conscience-shocking behavior on the part of\\nthe state where plaintiff confidential informant was harmed while on the streets, not in\\na prison or jail); Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (requiring proof of\\nconscience-shocking behavior when plaintiffs alleged government made false\\nassurances that workplace would be safe, although plaintiffs were not in custody).\\n\\n 27\\n\\fdeliberate indifference to such needs. See Estelle, 429 U.S. at 105; Darnell v. Pineiro,\\n\\n849 F.3d 17, 29 (2017).\\n\\n A. Serious Medical Needs\\n\\n Depending on their severity, psychiatric or psychological conditions can\\n\\npresent serious medical needs in light of our contemporary standards. See e.g.,\\n\\nCuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The serious medical needs\\n\\nstandard contemplates a condition of urgency such as one that may produce\\n\\ndeath, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553\\n\\n(2d Cir. 1996). In determining whether a medical need is sufficiently serious to be\\n\\ncognizable as a basis for a constitutional claim for deprivation of medical care, we\\n\\nconsider factors such as whether a reasonable doctor or patient would find the\\n\\ninjury important and worthy of treatment, whether the medical condition\\n\\nsignificantly affects an individual’s daily activities, and whether the illness or\\n\\ninjury inflicts chronic and substantial pain. See Chance v. Armstrong, 143 F.3d 698,\\n\\n702 (2d Cir. 1998). In most cases, the actual medical consequences that flow from\\n\\nthe denial of care are highly relevant in determining whether the denial of\\n\\ntreatment subjected the detainee to a significant risk of serious harm. See Smith v.\\n\\nCarpenter, 316 F.3d 178, 187 (2d Cir. 2003).\\n\\n\\n 28\\n\\f B. Deliberate Indifference\\n\\n The concept of deliberate indifference has a more complicated history in\\n\\nthis Circuit. See Darnell, 849 F.3d at 32–36 (explaining how the concept of\\n\\ndeliberate indifference has evolved in the case law since Farmer v. Brennan, 511\\n\\nU.S. 825 (1994)). In Darnell, we clarified that deliberate indifference, in the context\\n\\nof a Fourteenth Amendment due process claim, can be shown by something akin\\n\\nto recklessness, and does not require proof of a malicious or callous state of mind.\\n\\n849 F.3d at 33–34. Deliberate indifference, we held, can be established by either a\\n\\nsubjective or objective standard: A plaintiff can prove deliberate indifference by\\n\\nshowing that the defendant official “recklessly failed to act with reasonable care\\n\\nto mitigate the risk that the condition posed to the pretrial detainee even though\\n\\nthe defendant-official knew, or should have known, that the condition posed an\\n\\nexcessive risk to [the plaintiff’s] health or safety.” Id. at 35 (emphasis added). This\\n\\nformulation of the deliberate indifference standard was developed in cases\\n\\ninvolving unconstitutional conditions of confinement. In Darnell, the plaintiffs\\n\\ncomplained, inter alia, that the facility where they were detained was unsafe and\\n\\nunsanitary. Id. at 23–26. Although Darnell did not specifically address medical\\n\\ntreatment, the same principle applies here. See id. at 33 n.9 (noting that the same\\n\\n\\n 29\\n\\fstandard applies to claims for deliberate indifference to medical needs because\\n\\n“deliberate indifference means the same thing for each type of claim under the\\n\\nFourteenth Amendment”).\\n\\n A plaintiff must show “something more than mere negligence” to establish\\n\\ndeliberate indifference in the Fourteenth Amendment context. Weyant v. Okst, 101\\n\\nF.3d 845, 856 (2d Cir. 1996). Thus, “mere medical malpractice is not tantamount\\n\\nto deliberate indifference, but it may rise to the level of deliberate indifference\\n\\nwhen it involves culpable recklessness, i.e., an act or a failure to act . . . that\\n\\nevinces a conscious disregard of a substantial risk of serious harm.” Cuoco, 222\\n\\nF.3d at 107 (internal quotation marks and alteration omitted).\\n\\n Thus, a detainee asserting a Fourteenth Amendment claim for deliberate\\n\\nindifference to his medical needs can allege either that the defendants knew that\\n\\nfailing to provide the complained of medical treatment would pose a substantial\\n\\nrisk to his health or that the defendants should have known that failing to provide\\n\\nthe omitted medical treatment would pose a substantial risk to the detainee’s\\n\\nhealth.\\n\\n Whether the state knew or should have known of the substantial risk of\\n\\nharm to the detainee is a question of fact subject to demonstration in the usual\\n\\n\\n 30\\n\\fways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842;\\n\\nsee also Hathaway, 37 F.3d at 67–69 (whether doctor was deliberately indifferent to\\n\\ninmate’s serious medical needs was for jury). “A factfinder may conclude that a\\n\\nprison official knew of a substantial risk from the very fact that the risk was\\n\\nobvious.” Farmer, 511 U.S. at 842.\\n\\n Thus, to sustain their § 1983 cause of action, Plaintiffs must plausibly allege\\n\\nthat they had a sufficiently serious medical need requiring discharge planning\\n\\nand that the deprivation of such planning was inflicted under circumstances\\n\\nconstituting deliberate indifference.\\n\\nIII. Whether Plaintiffs Had Sufficiently Serious Needs Requiring Discharge\\n Planning\\n\\n Plaintiffs have plausibly alleged that they had a sufficiently serious need\\n\\nfor discharge planning given their serious mental illnesses. Plaintiffs’ mental\\n\\nillnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood\\n\\nwhen they go untreated. Without continuous care and daily medication to keep\\n\\nthem mentally stable, Plaintiffs face serious risk of physical and psychological\\n\\nharm.\\n\\n Plaintiffs’ theory that discharge planning is integral to institutional mental\\n\\n\\n\\n\\n 31\\n\\fhealth care is supported by their citations to professional organizations in the\\n\\nmental health field. Many professional organizations that determine appropriate\\n\\nstandards of mental health care regard discharge planning as an essential\\n\\ncomponent of care for the institutionalized mentally ill, including not only\\n\\nsentenced prisoners and civil and criminal detainees with serious mental\\n\\nillnesses, but also those, whether voluntarily hospitalized or involuntarily\\n\\ncommitted, who are institutionalized for the very purpose of treating their\\n\\nmental illnesses. For example, Plaintiffs point to guidance by the American\\n\\nPsychiatric Association, the primary professional association of psychiatrists in\\n\\nthe United States and the largest psychiatric professional organization in the\\n\\nworld, which recognizes that “[t]imely and effective discharge planning is\\n\\nessential to continuity of care and an integral part of adequate mental health\\n\\ntreatment.” App’x at 29.\\n\\n Plaintiffs’ allegations regarding the importance of discharge planning are\\n\\ncorroborated by what befell them when such planning was not provided to them.\\n\\nSee Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Because Plaintiffs were not\\n\\nprovided with discharge plans, Plaintiffs allege they both faced an abrupt\\n\\ninterruption in their care causing them to suffer significant mental health\\n\\n\\n 32\\n\\fconsequences. Charles suffered complete psychiatric decompensation shortly\\n\\nafter being released. His family was forced to call 911 for emergency medical care\\n\\nand he required two months of hospitalization to regain mental stability. Small\\n\\nwas somewhat more fortunate. She received treatment before she fully\\n\\ndecompensated, but she was still forced to check herself into a hospital\\n\\nemergency room within days of her release and continues to suffer extreme\\n\\nemotional and psychological distress.\\n\\n We therefore find plausible Plaintiffs’ allegations that they had serious\\n\\nmedical needs requiring discharge planning. Of course, those are only\\n\\nallegations: we leave it to the fact-finder, or to summary judgment after\\n\\ndiscovery, to determine whether the facts, as developed, prove that Plaintiffs had\\n\\na serious medical need requiring discharge planning and if so, in what form.\\n\\nIV. Whether the Defendants’ Failure to Provide Discharge Planning to\\n Plaintiffs Constituted Deliberate Indifference\\n\\n Plaintiffs have also sufficiently alleged that Defendants knew or should\\n\\nhave known that failing to provide them with discharge planning would cause\\n\\nPlaintiffs substantial harm. According to Plaintiffs, Defendants knew the serious\\n\\nnature of Plaintiffs’ mental health conditions; they diagnosed Plaintiffs,\\n\\n\\n\\n\\n 33\\n\\fmaintained their medical records, created treatment plans for them, and\\n\\nprescribed anti-psychotic and anti-depressant medication for them. As noted\\n\\nabove, Plaintiffs point to guidance by, among others, the American Psychiatric\\n\\nAssociation and the National Commission on Correctional Health Care, stating\\n\\nthat discharge planning is an essential component of adequate institutional\\n\\nmental healthcare for people with Plaintiffs’ illnesses. It is reasonable to infer, at\\n\\nthis stage, that the defendant clinic directors, as mental health professionals\\n\\nengaged in providing treatment to prisoners and detainees in an institutional\\n\\nsetting, were aware of these standards.\\n\\n Nor is it necessary to resort solely to inference. The policies and protocols\\n\\ngoverning Defendants and others providing treatment at the Jail themselves\\n\\ndemand such discharge planning. Both ICE and Orange County have written\\n\\npolicies recognizing that mental health discharge planning is an essential\\n\\ncomponent of mental health treatment in institutional settings. ICE’s 2011\\n\\nPerformance-Based National Detention Standards (revised in 2016) provide that\\n\\n“[d]etainees, who have received medical care, [been] released from custody or\\n\\nremoved shall receive a mental health discharge plan, a summary of medical\\n\\nrecords, any medically necessary medication and referrals to community-based\\n\\n\\n\\n 34\\n\\fproviders as medically appropriate.” App’x at 32 (alterations omitted). Orange\\n\\nCounty policies similarly require that “[n]o client shall be discharged without a\\n\\ndischarge plan” which “shall be given to the client upon discharge.” Id. at 130.\\n\\n Indeed, according to Plaintiffs, Defendants regularly provide discharge\\n\\nplanning to individuals who are held at the Orange County Detention Center in\\n\\ncriminal detention in accordance with these standards—demonstrating\\n\\nDefendants’ understanding that discharge planning is important for mentally ill\\n\\ninmates. In Charles’s case, the Mental Health Department expressly recognized\\n\\nthat Charles would have “projected mental health needs” in his Discharge\\n\\nSummary. Id. at 152.\\n\\n Thus, Plaintiffs have plausibly alleged that Defendants were fully aware of,\\n\\nand violated, both Orange County and ICE policies by failing to provide them\\n\\nwith discharge planning as part of their care. Plaintiffs’ allegations, if proven\\n\\ntrue, are sufficient to establish that Defendants knew, or should have known, of\\n\\nthe substantial risk that Plaintiffs would relapse and suffer serious adverse health\\n\\nconsequences if they were not provided with necessary discharge planning, such\\n\\nthat a fact-finder could infer “reckless disregard” beyond mere negligence or\\n\\nmedical malpractice. Weyant, 101 F.3d at 856; see Harrison v. Barkley, 219 F.3d 132,\\n\\n139 (2d Cir. 2000).\\n\\n\\n 35\\n\\fV. Issues Remaining for Factual Development\\n\\n That Plaintiffs have adequately stated a claim does not, of course, mean\\n\\nthat they have established their entitlement to relief. Plaintiffs will need to\\n\\nprovide evidence to back up their allegations. Moreover, Defendants have raised\\n\\nsignificant factual issues that need to be fleshed out through discovery. These\\n\\ninclude: whether the discharge planning measures Plaintiffs identify should be\\n\\nprovided as part of in-custody care (rather than undertaken upon or after\\n\\nrelease), the medical effects of a temporary deprivation of psychotropic\\n\\nmedication, the causal relationship between the alleged interruption in Plaintiffs’\\n\\ntreatment and the consequences they complain of, and whether the\\n\\ncircumstances of Plaintiffs’ release were so unexpected that Defendants could not\\n\\nhave anticipated, and properly planned for, their release at the time it occurred.\\n\\nMoreover, Plaintiffs’ own allegations about the existence of written Orange\\n\\nCounty policies call into question whether Plaintiffs can establish their contention\\n\\nthat there is a consistent policy, custom, or practice of denying such planning to\\n\\nimmigrant detainees. After discovery, the district court will be in a better position\\n\\nto determine the precise parameters of the treatment that should have been\\n\\nprovided; whether the failure to provide any mandated care was attributable to\\n\\nDefendants’ deliberate indifference, mere negligence, or unforeseen and\\n\\n\\n 36\\n\\funforeseeable circumstances; and what, if any, damages were caused by any\\n\\ndereliction on the part of Defendants.12 But, at the pleading stage, we hold that\\n\\nPlaintiffs have adequately stated a Fourteenth Amendment substantive due\\n\\nprocess claim.\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we VACATE the district court’s opinion and\\n\\nREMAND for proceedings consistent with this opinion.\\n\\n\\n\\n\\n12\\n In addition, the district court may consider, on remand, various issues it did\\nnot reach in its September 29, 2017 opinion, and on which we express no opinion,\\nsuch as: (1) whether the Plaintiffs adequately pled a county policy, practice, or\\ncustom for purposes of Monell liability; (2) whether Plaintiffs have adequately\\nstated a claim against Elizondo; and (3) whether Elizondo is entitled to qualified\\nimmunity.\\n\\n 37\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1993,"cells":{"id":{"kind":"number","value":4623933,"string":"4,623,933"},"name":{"kind":"string","value":"Brenda ESTRELLA, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Estrella v. Berryhill"},"decision_date":{"kind":"string","value":"2019-05-29"},"docket_number":{"kind":"string","value":"17-3247-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Chin, Kaplan, Wesley\", \"parties\": \"\", \"opinions\": [{\"author\": \"WESLEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐3247‐cv\\nEstrella v. Berryhill\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ______________\\n\\n August Term 2018\\n\\n (Argued: April 18, 2019 Decided: May 29, 2019)\\n\\n Docket No. 17‐3247\\n\\n BRENDA ESTRELLA\\n\\n Plaintiff‐Appellant,\\n\\n –v.–\\n\\n NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,\\n\\n Defendant‐Appellee.\\n\\n ______________\\n\\nBefore:\\n WESLEY, CHIN, Circuit Judges; KAPLAN, District Judge.*\\n\\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\\nStates District Court for the Eastern District of New York (Kuntz, J.) affirming the\\nCommissioner of Social Security’s denial of disability benefits. Estrella contends\\nthat the administrative law judge who reviewed her claim, and whose decision the\\nCommissioner adopted, erred by (A) failing to give controlling weight to the\\nopinion of her treating physician and (B) failing to explain the reasons for giving\\n\\n\\n*Judge Lewis A. Kaplan, United States District Court for the Southern District of\\nNew York, sitting by designation.\\n\\fthat opinion minimal weight. For the reasons that follow, we VACATE the\\njudgment of the district court and REMAND the case to the Commissioner for\\nfurther proceedings consistent with this opinion.\\n _________________\\n\\n\\n CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY,\\n for Plaintiff‐Appellant.\\n\\n CANDACE SCOTT APPLETON, Assistant United States Attorney\\n (Varuni Nelson and Arthur Swerdloff, Assistant United States\\n Attorneys, on the brief), for Richard P. Donoghue, United States\\n Attorney for the Eastern District of New York, New York, NY,\\n for Defendant‐Appellee.\\n\\n _________________\\n\\n\\nWESLEY, Circuit Judge:\\n\\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\\n\\nStates District Court for the Eastern District of New York (Kuntz, J.), affirming the\\n\\nCommissioner of Social Security’s (“Commissioner”) denial of disability benefits\\n\\nunder Titles II and XVI of the Social Security Act (“SSA” or “the Act”), 42 U.S.C.\\n\\n§§ 401–434 and 1381–1383. Estrella contends that the administrative law judge\\n\\n(“ALJ”) who reviewed her claim, and whose decision the Commissioner adopted,\\n\\nerred by (A) failing to give controlling weight to the opinion of her treating\\n\\nphysician and (B) failing to explain the reasons for giving that opinion minimal\\n\\nweight. For the reasons that follow, we vacate the judgment of the district court\\n\\n\\n\\n 2\\n\\fand remand the case to the Commissioner for further proceedings consistent with\\n\\nthis opinion.\\n\\n BACKGROUND\\n\\n Estrella worked as an administrative clerk from 1994 until 2008. Beginning\\n\\nin 2002 and continuing through at least 2013, Estrella suffered from, as relevant to\\n\\nthis appeal, major depressive disorder, bipolar disorder, and Attention Deficit\\n\\nHyperactive Disorder. From 2003 to 2006, and again from 2010 to 2013, Estrella\\n\\ntook various medications to treat her mental illness and attended monthly\\n\\npsychotherapy sessions. Estrella testified that she did not seek treatment between\\n\\n2006 and 2010 because she “was in an abusive relationship[,] . . . was suffering\\n\\nfrom severe depression,” and had consequently “withdr[awn] [her]self.” Admin.\\n\\nR. 108.\\n\\n In June 2012, Estrella applied for Social Security Disability Insurance and\\n\\nSupplemental Security Income benefits. She claimed that she had been unable to\\n\\nwork since August 27, 2008 because of depression, herniated discs, knee pain,\\n\\ndiabetes, nerve damage, sleep apnea, and “spasms.” Id. at 236.\\n\\n A claimant is disabled for purposes of the SSA if she is unable to “engage in\\n\\nany substantial gainful activity by reason of any medically determinable physical\\n\\n\\n\\n\\n 3\\n\\for mental impairment [that] can be expected to result in death or which has lasted\\n\\nor can be expected to last for a continuous period of not less than 12 months.” 42\\n\\nU.S.C. § 423(d)(1)(A). The Social Security Administration has outlined a “five‐step,\\n\\nsequential evaluation process” to determine whether a claimant is disabled:\\n\\n (1) whether the claimant is currently engaged in substantial gainful\\n activity; (2) whether the claimant has a severe impairment or\\n combination of impairments; (3) whether the impairment meets or\\n equals the severity of the specified impairments in the Listing of\\n Impairments; (4) based on a “residual functional capacity”\\n assessment, whether the claimant can perform any of his or her past\\n relevant work despite the impairment; and (5) whether there are\\n significant numbers of jobs in the national economy that the claimant\\n can perform given the claimant’s residual functional capacity, age,\\n education, and work experience.\\n\\nMcIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d\\n\\n117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The\\n\\nclaimant bears the burden of proving her case at steps one through four. Id. The\\n\\nburden shifts to the Commissioner at step five. Id.\\n\\n On October 22, 2012, the Commissioner denied Estrella’s application. The\\n\\nSocial Security Administration’s Office of Disability Adjudication and Review\\n\\nsubsequently granted Estrella’s request for a hearing before an ALJ. Following a\\n\\nhearing in October 2013, and a second hearing in January 2014, the ALJ\\n\\ndetermined, in accordance with the five‐step process, the following: (1) Estrella\\n\\n\\n\\n 4\\n\\f“ha[d] not engaged in substantial gainful activity since August 27, 2008,” Admin.\\n\\nR. 25; (2) her mild lumbar and median nerve radiculopathy, mild to moderate\\n\\nbilateral carpal tunnel syndrome, diabetes, and depression were severe\\n\\nimpairments because the conditions “impose[d] more than minimal limitations”\\n\\non her ability to perform basic work activities, id.; (3) she did not have an\\n\\nimpairment or combination of impairments that met or equaled the severity of the\\n\\nspecified impairments in the Listing of Impairments, id.; (4) she had the residual\\n\\nfunctional capacity (“RFC”) to perform light work, with certain limitations, and\\n\\nshe could perform past relevant work as an administrative clerk, which would not\\n\\nbe precluded by her RFC, id. at 27, 30; and (5) she could otherwise perform a “wide\\n\\nrange of light level . . . work,” id. at 30. The ALJ accordingly denied Estrella’s\\n\\napplication. Id.\\n\\n The Office of Disability Adjudication and Review denied Estrella’s request\\n\\nfor review on May 14, 2015, at which point the ALJ’s decision became the final\\n\\ndecision of the Commissioner. On July 8, 2015, Estrella filed a complaint in the\\n\\nUnited States District Court for the Eastern District of New York, effectively\\n\\nappealing the Commissioner’s decision. On September 6, 2017, the district court\\n\\n\\n\\n\\n 5\\n\\fdenied Estrella’s motion for judgment on the pleadings and granted the\\n\\nCommissioner’s cross‐motion for the same. This appeal followed.\\n\\n\\n DISCUSSION\\n\\n I. Standard of Review\\n\\n On an appeal from the denial of disability benefits, “we focus on the\\n\\nadministrative ruling rather than the district court’s opinion.” McIntyre, 758 F.3d\\n\\nat 149 (citation omitted). “We conduct a plenary review of the administrative\\n\\nrecord to determine if there is substantial evidence, considering the record as a\\n\\nwhole, to support the Commissioner’s decision and if the correct legal standards\\n\\nhave been applied.” Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013) (per\\n\\ncuriam) (quotation marks and citation omitted). Substantial evidence is evidence\\n\\nthat “a reasonable mind might accept as adequate to support a conclusion.”\\n\\nMcIntyre, 758 F.3d at 149 (citation omitted). Although we do not require that\\n\\n“every conflict in a record be reconciled by the ALJ or the Secretary, . . . we do\\n\\n[require] that the crucial factors in any determination . . . be set forth with sufficient\\n\\nspecificity to enable us to decide whether the determination is supported by\\n\\nsubstantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).\\n\\n\\n\\n\\n 6\\n\\f II. Treating Physician Rule\\n\\n Estrella principally challenges the ALJ’s handling of her treating\\n\\npsychiatrist’s opinion. In October 2013, Dr. Felix Dron submitted a Medical Source\\n\\nStatement to the Office of Disability Adjudication and Review in which he opined\\n\\nthat Estrella’s “poor concentration, forgetful[ness], low stress tolerance, rage\\n\\noutbursts[,] . . . depression[,] and anxiety” resulted in “marked” limitations in the\\n\\nareas of making work‐related decisions and understanding, remembering, and\\n\\ncarrying out detailed instructions. Admin. R. 507–08. Although Dr. Dron had\\n\\ntreated Estrella for roughly five years, the ALJ assigned “little weight” to his\\n\\nopinion. Id. at 29. Estrella argues that, in doing so, the ALJ failed to comply with\\n\\nthe procedural mandates of the so‐called treating physician rule. We agree.\\n\\n Social Security Administration regulations, as well as our precedent,\\n\\nmandate specific procedures that an ALJ must follow in determining the\\n\\nappropriate weight to assign a treating physician’s opinion. First, the ALJ must\\n\\ndecide whether the opinion is entitled to controlling weight. “[T]he opinion of a\\n\\nclaimant’s treating physician as to the nature and severity of [an] impairment is\\n\\ngiven ‘controlling weight’ so long as it ‘is well‐supported by medically acceptable\\n\\nclinical and laboratory diagnostic techniques and is not inconsistent with the other\\n\\n\\n\\n\\n 7\\n\\fsubstantial evidence in [the] case record.’” Burgess, 537 F.3d at 128 (third brackets\\n\\nin original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides the\\n\\nopinion is not entitled to controlling weight, it must determine how much weight,\\n\\nif any, to give it. In doing so, it must “explicitly consider” the following,\\n\\nnonexclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of\\n\\ntreatment; (2) the amount of medical evidence supporting the opinion; (3) the\\n\\nconsistency of the opinion with the remaining medical evidence; and (4) whether\\n\\nthe physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per\\n\\ncuriam) (citing Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2))). At both\\n\\nsteps, the ALJ must “give good reasons in [its] notice of determination or decision\\n\\nfor the weight [it gives the] treating source’s [medical] opinion.” Halloran v.\\n\\nBarnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R. §\\n\\n404.1527(c)(2)).\\n\\n An ALJ’s failure to “explicitly” apply the Burgess factors when assigning\\n\\nweight at step two is a procedural error. Selian, 708 F.3d at 419–20. If “the\\n\\nCommissioner has not [otherwise] provided ‘good reasons’ [for its weight\\n\\nassignment],” we are unable to conclude that the error was harmless and\\n\\nconsequently remand for the ALJ to “comprehensively set forth [its] reasons.” See\\n\\n\\n\\n\\n 8\\n\\fHalloran, 362 F.3d at 33. If, however, “a searching review of the record” assures us\\n\\n“that the substance of the treating physician rule was not traversed,” we will\\n\\naffirm. See id. at 32.\\n\\n To begin, although substantial evidence supports the ALJ’s decision at step\\n\\none to assign less‐than‐controlling weight to Dr. Dron’s opinion, the same is not\\n\\ntrue of its decision at step two to assign “little weight” thereto. In deciding, at step\\n\\none, that Dr. Dron’s opinion was not entitled to controlling weight, the ALJ\\n\\npointed to two positive treatment notes from July and August 2012. The October\\n\\n2013 Medical Source Statement, it explained,\\n\\n [was] inconsistent with the evidence and [Dr. Dron’s own]\\n examination of [Estrella]. During [Dr. Dron’s] examination of\\n [Estrella], . . . most of her mental status examinations were normal,\\n she only had at most mild depression, she denied having\\n hallucination [sic], and suicidal, homicidal ideations, and there was\\n no evidence of cognitive limitations or psychosis. Most importantly,\\n from September 12, 2012 through October 15, 2013, [Estrella’s] [Global\\n Assessment of Functioning] scores [had] been consistently at 70,\\n which indicate[d] mild depression, not marked depression.\\n\\nAdmin. R. 29. In subsequently deciding, at step two, to assign “little weight” to\\n\\nDr. Dron’s opinion, the ALJ provided no additional reasoning. It thus failed to\\n\\n“explicitly consider” the first Burgess factor—“the frequen[cy], length, nature, and\\n\\nextent of [Dr. Dron’s] treatment”—before weighing the value of the opinion. See\\n\\nSelian, 708 F.3d at 418. Nowhere in the ALJ’s decision, for example, is the fact that\\n\\n\\n 9\\n\\fDr. Dron treated Estrella from 2004 to 2006, and again from 2010 to 2013. Nor did\\n\\nthe ALJ consider that Dr. Dron prescribed various psychotropic medications over\\n\\nthe course of his treatment, in addition to providing monthly psychotherapy\\n\\nsessions.\\n\\n Because the ALJ procedurally erred, the question becomes whether “a\\n\\nsearching review of the record . . . assure[s us] . . . that the substance of the . . . rule\\n\\nwas not traversed”—i.e., whether the record otherwise provides “good reasons”\\n\\nfor assigning “little weight” to Dr. Dron’s opinion. See Halloran, 362 F.3d at 32. It\\n\\ndoes not.\\n\\n First, a number of treatment notes not cited by the ALJ reflect a more serious\\n\\nimpairment than the ALJ acknowledged. For example, in January 2012, prior to\\n\\nthe only two referenced notes, Dr. Dron observed that Estrella\\n\\n [was] inattentive[,] . . . ha[d] a short attention span[,] . . . often [did]\\n not seem to be listening when spoken to directly[,] . . . often [did] not\\n follow through on instructions[,] and fail[ed] to finish tasks. She [was]\\n disorganized . . . [and avoided t]asks that require sustained mental\\n effort . . . . She often los[t] things necessary for tasks or activities[,] . . .\\n [and was] easily distracted . . . [and] forgetful.\\n\\nAdmin. R. 456. In June 2013, subsequent to the two referenced notes and closer in\\n\\ntime to the ALJ’s decision, Dr. Dron observed that Estrella’s\\n\\n anxiety symptoms continue[d] . . . . [She] continue[d] to be\\n inattentive[,] . . . [and did] not seem to be listening when spoken to\\n\\n\\n 10\\n\\f directly . . . . Tasks that require[d] sustained mental effort [were] still\\n being avoided . . . . [Estrella] continue[d] to often lose things necessary\\n for tasks or activities[,] . . . [was] still as forgetful as previously[,] . . .\\n [and showed] signs of anxiety.\\n\\nId. at 434.\\n\\n The ALJ made no attempt to “reconcile” or “grapple with” the apparent\\n\\nlongitudinal inconsistencies in Estrella’s mental health—one of the motivations\\n\\nbehind Burgess’s procedural requirement of explicit consideration of “the\\n\\nfrequen[cy], length, nature, and extent of [a physician’s] treatment.” See Selian, 708\\n\\nF.3d at 418–19. This failure is especially relevant here because the first Burgess\\n\\nfactor, and therefore evidence supporting its satisfaction, is of heightened\\n\\nimportance in the context of Estrella’s claimed impairment: depression. “Cycles of\\n\\nimprovement and debilitating symptoms [of mental illness] are a common\\n\\noccurrence, and in such circumstances it is error for an ALJ to pick out a few\\n\\nisolated instances of improvement over a period of months or years and to treat\\n\\nthem as a basis for concluding a claimant is capable of working.” Garrison v. Colvin,\\n\\n759 F.3d 995, 1017 (9th Cir. 2014); see also Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.\\n\\n2008) (“A person who has a chronic disease, whether physical or psychiatric, and\\n\\nis under continuous treatment for it with heavy drugs, is likely to have better days\\n\\nand worse days . . . . Suppose that half the time she is well enough that she could\\n\\n\\n\\n 11\\n\\fwork, and half the time she is not. Then she could not hold down a full‐time job.”).\\n\\nWhen viewed alongside the evidence of the apparently cyclical nature of Estrella’s\\n\\ndepression, the ALJ’s two cherry‐picked treatment notes do not provide “good\\n\\nreasons” for minimalizing Dr. Dron’s opinion.\\n\\n Second, Estrella’s Global Assessment of Functioning (“GAF”) scores, which\\n\\nthe ALJ concluded “indicated mild depression, not marked depression,” Admin.\\n\\nR. 29, do not provide good reasons for assigning little weight to Dr. Dron’s\\n\\nopinion.1 The Social Security Administration has explained that “[u]nless [a]\\n\\nclinician clearly explains the reasons behind his or her GAF rating, and the period\\n\\nto which the rating applies, it does not provide a reliable longitudinal picture of\\n\\nthe claimant’s mental functioning for a disability analysis.” U.S. Soc. Sec. Admin.,\\n\\nOffice of Disability Programs, AM‐13066, Global Assessment of Functioning\\n\\n(GAF) Evidence in Disability Adjudication (Oct. 14, 2014). Furthermore, “[u]nless\\n\\nthe GAF rating is well supported and consistent with other evidence in the file, it\\n\\n\\n\\n\\n1The Government contends Estrella waived any argument regarding the ALJ’s treatment\\nof the GAF scores. However, as we have explained, claimants in Social Security cases\\nmust preserve legal arguments—not necessarily factual ones. See Poupore v. Astrue, 566\\nF.3d 303, 306 (2d Cir. 2009) (per curiam). Estrella preserved the legal argument that the\\nALJ erroneously assigned little weight to the opinion of her treating physician.\\nAccordingly, we will review her factual GAF argument in support of that claim of legal\\nerror.\\n\\n\\n 12\\n\\fis entitled to little weight under our rules.” Id. Because Estrella’s GAF scores were\\n\\nbereft of any explanation of Dr. Dron’s reasoning, and because they are\\n\\nunsupported by Dr. Dron’s other conclusions as to the severity of Estrella’s\\n\\ndepression, they do not provide “good reasons” for assigning little weight to Dr.\\n\\nDron’s opinion.\\n\\n Finally, the opinion of Dr. Christopher Flach, a one‐time consultative\\n\\npsychologist, similarly does not provide a good reason for diminishing Dr. Dron’s\\n\\nopinion. After examining Estrella once in September 2012, Dr. Flach opined that\\n\\nEstrella had mild problems maintaining attention and concentration but could\\n\\nfollow and understand simple directions and instructions, maintain a regular\\n\\nschedule, learn new tasks, perform complex tasks independently, and make\\n\\nappropriate decisions. The ALJ assigned “substantial weight” to Dr. Flach’s\\n\\nopinion because it “[was] consistent with [Dr. Dron’s] mental treatment notes,\\n\\nwhich [did] not show marked limitations.” Admin. R. 29.\\n\\n We have frequently “cautioned that ALJs should not rely heavily on the\\n\\nfindings of consultative physicians after a single examination.” Selian, 708 F.3d at\\n\\n419. This concern is even more pronounced in the context of mental illness where,\\n\\nas discussed above, a one‐time snapshot of a claimant’s status may not be\\n\\n\\n\\n\\n 13\\n\\findicative of her longitudinal mental health. Because the ALJ made the same error\\n\\nwith respect to Dr. Flach as it did with respect to Dr. Dron—namely, relying on his\\n\\nopinion without “reconcil[ing]” or “grappl[ing] with” Estrella’s fluctuating state\\n\\nof mental health—we are not assured that, had the ALJ complied with the\\n\\nprocedural mandates of the treating physician rule, it would still have assigned\\n\\nsignificant weight to Dr. Flach’s opinion. The opinion of Dr. Flach, in other words,\\n\\nsimilarly does not provide a “good reason” for minimizing that of Dr. Dron.\\n\\n In light of the ALJ’s failure to “explicitly consider” the first Burgess factor\\n\\nbefore assigning “little weight” to the opinion of Estrella’s treating psychiatrist,\\n\\nand the lack of other “good reasons” to support that decision, we conclude that\\n\\nthe ALJ traversed the substance of the treating physician rule.2 Accordingly, we\\n\\nremand to the ALJ for reconsideration of Estrella’s claim for disability benefits\\n\\nconsistent with the procedural mandates of the SSA and this Court.3 On remand,\\n\\n\\n\\n2 Estrella also challenges the ALJ’s hypothetical question to the vocational expert.\\nHowever, because she “does not challenge the ALJ’s determination that she has the\\nphysical [RFC] to perform light work,” Appellant Br. 19 n.23, we do not consider this\\nargument, which concerns her physical limitations resulting from her mild to moderate\\nbilateral carpal tunnel syndrome.\\n3Although we have the “power to enter, upon the pleadings and transcript of the record,\\na judgment affirming, modifying, or reversing the decision of the Commissioner of Social\\nSecurity, with or without remanding the cause for a rehearing,” 42 U.S.C. § 405(g), the\\nrecord here does not “provide[] persuasive evidence of total disability that [would]\\n\\n\\n\\n 14\\n\\fthe ALJ should apply all four Burgess factors in determining the appropriate\\n\\nweight to accord to Dr. Dron’s opinion.\\n\\n\\n CONCLUSION\\n\\n For the foregoing reasons, the judgment of the district court is VACATED,\\n\\nand the case is REMANDED to the Commissioner for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\nrender[] any further proceedings pointless,” Williams v. Apfel, 204 F.3d 48, 50 (2d Cir.\\n1999).\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4401186/\", \"author_raw\": \"WESLEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CHIN"},"judge2":{"kind":"string","value":"KAPLAN"},"judge3":{"kind":"string","value":"WESLEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4623933/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Brenda ESTRELLA, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3247‐cv\nEstrella v. Berryhill\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ______________\n\n August Term 2018\n\n (Argued: April 18, 2019 Decided: May 29, 2019)\n\n Docket No. 17‐3247\n\n BRENDA ESTRELLA\n\n Plaintiff‐Appellant,\n\n –v.–\n\n NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,\n\n Defendant‐Appellee.\n\n ______________\n\nBefore:\n WESLEY, CHIN, Circuit Judges; KAPLAN, District Judge.*\n\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\nStates District Court for the Eastern District of New York (Kuntz, J.) affirming the\nCommissioner of Social Security’s denial of disability benefits. Estrella contends\nthat the administrative law judge who reviewed her claim, and whose decision the\nCommissioner adopted, erred by (A) failing to give controlling weight to the\nopinion of her treating physician and (B) failing to explain the reasons for giving\n\n\n*Judge Lewis A. Kaplan, United States District Court for the Southern District of\nNew York, sitting by designation.\n\fthat opinion minimal weight. For the reasons that follow, we VACATE the\njudgment of the district court and REMAND the case to the Commissioner for\nfurther proceedings consistent with this opinion.\n _________________\n\n\n CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY,\n for Plaintiff‐Appellant.\n\n CANDACE SCOTT APPLETON, Assistant United States Attorney\n (Varuni Nelson and Arthur Swerdloff, Assistant United States\n Attorneys, on the brief), for Richard P. Donoghue, United States\n Attorney for the Eastern District of New York, New York, NY,\n for Defendant‐Appellee.\n\n _________________\n\n\nWESLEY, Circuit Judge:\n\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\n\nStates District Court for the Eastern District of New York (Kuntz, J.), affirming the\n\nCommissioner of Social Security’s (“Commissioner”) denial of disability benefits\n\nunder Titles II and XVI of the Social Security Act (“SSA” or “the Act”), 42 U.S.C.\n\n§§ 401–434 and 1381–1383. Estrella contends that the administrative law judge\n\n(“ALJ”) who reviewed her claim, and whose decision the Commissioner adopted,\n\nerred by (A) failing to give controlling weight to the opinion of her treating\n\nphysician and (B) failing to explain the reasons for giving that opinion minimal\n\nweight. For the reasons that follow, we vacate the judgment of the district court\n\n\n\n 2\n\fand remand the case to the Commissioner for further proceedings consistent with\n\nthis opinion.\n\n BACKGROUND\n\n Estrella worked as an administrative clerk from 1994 until 2008. Beginning\n\nin 2002 and continuing through at least 2013, Estrella suffered from, as relevant to\n\nthis appeal, major depressive disorder, bipolar disorder, and Attention Deficit\n\nHyperactive Disorder. From 2003 to 2006, and again from 2010 to 2013, Estrella\n\ntook various medications to treat her mental illness and attended monthly\n\npsychotherapy sessions. Estrella testified that she did not seek treatment between\n\n2006 and 2010 because she “was in an abusive relationship[,] . . . was suffering\n\nfrom severe depression,” and had consequently “withdr[awn] [her]self.” Admin.\n\nR. 108.\n\n In June 2012, Estrella applied for Social Security Disability Insurance and\n\nSupplemental Security Income benefits. She claimed that she had been unable to\n\nwork since August 27, 2008 because of depression, herniated discs, knee pain,\n\ndiabetes, nerve damage, sleep apnea, and “spasms.” Id. at 236.\n\n A claimant is disabled for purposes of the SSA if she is unable to “engage in\n\nany substantial gainful activity by reason of any medically determinable physical\n\n\n\n\n 3\n\for mental impairment [that] can be expected to result in death or which has lasted\n\nor can be expected to last for a continuous period of not less than 12 months.” 42\n\nU.S.C. § 423(d)(1)(A). The Social Security Administration has outlined a “five‐step,\n\nsequential evaluation process” to determine whether a claimant is disabled:\n\n (1) whether the claimant is currently engaged in substantial gainful\n activity; (2) whether the claimant has a severe impairment or\n combination of impairments; (3) whether the impairment meets or\n equals the severity of the specified impairments in the Listing of\n Impairments; (4) based on a “residual functional capacity”\n assessment, whether the claimant can perform any of his or her past\n relevant work despite the impairment; and (5) whether there are\n significant numbers of jobs in the national economy that the claimant\n can perform given the claimant’s residual functional capacity, age,\n education, and work experience.\n\nMcIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d\n\n117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The\n\nclaimant bears the burden of proving her case at steps one through four. Id. The\n\nburden shifts to the Commissioner at step five. Id.\n\n On October 22, 2012, the Commissioner denied Estrella’s application. The\n\nSocial Security Administration’s Office of Disability Adjudication and Review\n\nsubsequently granted Estrella’s request for a hearing before an ALJ. Following a\n\nhearing in October 2013, and a second hearing in January 2014, the ALJ\n\ndetermined, in accordance with the five‐step process, the following: (1) Estrella\n\n\n\n 4\n\f“ha[d] not engaged in substantial gainful activity since August 27, 2008,” Admin.\n\nR. 25; (2) her mild lumbar and median nerve radiculopathy, mild to moderate\n\nbilateral carpal tunnel syndrome, diabetes, and depression were severe\n\nimpairments because the conditions “impose[d] more than minimal limitations”\n\non her ability to perform basic work activities, id.; (3) she did not have an\n\nimpairment or combination of impairments that met or equaled the severity of the\n\nspecified impairments in the Listing of Impairments, id.; (4) she had the residual\n\nfunctional capacity (“RFC”) to perform light work, with certain limitations, and\n\nshe could perform past relevant work as an administrative clerk, which would not\n\nbe precluded by her RFC, id. at 27, 30; and (5) she could otherwise perform a “wide\n\nrange of light level . . . work,” id. at 30. The ALJ accordingly denied Estrella’s\n\napplication. Id.\n\n The Office of Disability Adjudication and Review denied Estrella’s request\n\nfor review on May 14, 2015, at which point the ALJ’s decision became the final\n\ndecision of the Commissioner. On July 8, 2015, Estrella filed a complaint in the\n\nUnited States District Court for the Eastern District of New York, effectively\n\nappealing the Commissioner’s decision. On September 6, 2017, the district court\n\n\n\n\n 5\n\fdenied Estrella’s motion for judgment on the pleadings and granted the\n\nCommissioner’s cross‐motion for the same. This appeal followed.\n\n\n DISCUSSION\n\n I. Standard of Review\n\n On an appeal from the denial of disability benefits, “we focus on the\n\nadministrative ruling rather than the district court’s opinion.” McIntyre, 758 F.3d\n\nat 149 (citation omitted). “We conduct a plenary review of the administrative\n\nrecord to determine if there is substantial evidence, considering the record as a\n\nwhole, to support the Commissioner’s decision and if the correct legal standards\n\nhave been applied.” Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013) (per\n\ncuriam) (quotation marks and citation omitted). Substantial evidence is evidence\n\nthat “a reasonable mind might accept as adequate to support a conclusion.”\n\nMcIntyre, 758 F.3d at 149 (citation omitted). Although we do not require that\n\n“every conflict in a record be reconciled by the ALJ or the Secretary, . . . we do\n\n[require] that the crucial factors in any determination . . . be set forth with sufficient\n\nspecificity to enable us to decide whether the determination is supported by\n\nsubstantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).\n\n\n\n\n 6\n\f II. Treating Physician Rule\n\n Estrella principally challenges the ALJ’s handling of her treating\n\npsychiatrist’s opinion. In October 2013, Dr. Felix Dron submitted a Medical Source\n\nStatement to the Office of Disability Adjudication and Review in which he opined\n\nthat Estrella’s “poor concentration, forgetful[ness], low stress tolerance, rage\n\noutbursts[,] . . . depression[,] and anxiety” resulted in “marked” limitations in the\n\nareas of making work‐related decisions and understanding, remembering, and\n\ncarrying out detailed instructions. Admin. R. 507–08. Although Dr. Dron had\n\ntreated Estrella for roughly five years, the ALJ assigned “little weight” to his\n\nopinion. Id. at 29. Estrella argues that, in doing so, the ALJ failed to comply with\n\nthe procedural mandates of the so‐called treating physician rule. We agree.\n\n Social Security Administration regulations, as well as our precedent,\n\nmandate specific procedures that an ALJ must follow in determining the\n\nappropriate weight to assign a treating physician’s opinion. First, the ALJ must\n\ndecide whether the opinion is entitled to controlling weight. “[T]he opinion of a\n\nclaimant’s treating physician as to the nature and severity of [an] impairment is\n\ngiven ‘controlling weight’ so long as it ‘is well‐supported by medically acceptable\n\nclinical and laboratory diagnostic techniques and is not inconsistent with the other\n\n\n\n\n 7\n\fsubstantial evidence in [the] case record.’” Burgess, 537 F.3d at 128 (third brackets\n\nin original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides the\n\nopinion is not entitled to controlling weight, it must determine how much weight,\n\nif any, to give it. In doing so, it must “explicitly consider” the following,\n\nnonexclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of\n\ntreatment; (2) the amount of medical evidence supporting the opinion; (3) the\n\nconsistency of the opinion with the remaining medical evidence; and (4) whether\n\nthe physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per\n\ncuriam) (citing Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2))). At both\n\nsteps, the ALJ must “give good reasons in [its] notice of determination or decision\n\nfor the weight [it gives the] treating source’s [medical] opinion.” Halloran v.\n\nBarnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R. §\n\n404.1527(c)(2)).\n\n An ALJ’s failure to “explicitly” apply the Burgess factors when assigning\n\nweight at step two is a procedural error. Selian, 708 F.3d at 419–20. If “the\n\nCommissioner has not [otherwise] provided ‘good reasons’ [for its weight\n\nassignment],” we are unable to conclude that the error was harmless and\n\nconsequently remand for the ALJ to “comprehensively set forth [its] reasons.” See\n\n\n\n\n 8\n\fHalloran, 362 F.3d at 33. If, however, “a searching review of the record” assures us\n\n“that the substance of the treating physician rule was not traversed,” we will\n\naffirm. See id. at 32.\n\n To begin, although substantial evidence supports the ALJ’s decision at step\n\none to assign less‐than‐controlling weight to Dr. Dron’s opinion, the same is not\n\ntrue of its decision at step two to assign “little weight” thereto. In deciding, at step\n\none, that Dr. Dron’s opinion was not entitled to controlling weight, the ALJ\n\npointed to two positive treatment notes from July and August 2012. The October\n\n2013 Medical Source Statement, it explained,\n\n [was] inconsistent with the evidence and [Dr. Dron’s own]\n examination of [Estrella]. During [Dr. Dron’s] examination of\n [Estrella], . . . most of her mental status examinations were normal,\n she only had at most mild depression, she denied having\n hallucination [sic], and suicidal, homicidal ideations, and there was\n no evidence of cognitive limitations or psychosis. Most importantly,\n from September 12, 2012 through October 15, 2013, [Estrella’s] [Global\n Assessment of Functioning] scores [had] been consistently at 70,\n which indicate[d] mild depression, not marked depression.\n\nAdmin. R. 29. In subsequently deciding, at step two, to assign “little weight” to\n\nDr. Dron’s opinion, the ALJ provided no additional reasoning. It thus failed to\n\n“explicitly consider” the first Burgess factor—“the frequen[cy], length, nature, and\n\nextent of [Dr. Dron’s] treatment”—before weighing the value of the opinion. See\n\nSelian, 708 F.3d at 418. Nowhere in the ALJ’s decision, for example, is the fact that\n\n\n 9\n\fDr. Dron treated Estrella from 2004 to 2006, and again from 2010 to 2013. Nor did\n\nthe ALJ consider that Dr. Dron prescribed various psychotropic medications over\n\nthe course of his treatment, in addition to providing monthly psychotherapy\n\nsessions.\n\n Because the ALJ procedurally erred, the question becomes whether “a\n\nsearching review of the record . . . assure[s us] . . . that the substance of the . . . rule\n\nwas not traversed”—i.e., whether the record otherwise provides “good reasons”\n\nfor assigning “little weight” to Dr. Dron’s opinion. See Halloran, 362 F.3d at 32. It\n\ndoes not.\n\n First, a number of treatment notes not cited by the ALJ reflect a more serious\n\nimpairment than the ALJ acknowledged. For example, in January 2012, prior to\n\nthe only two referenced notes, Dr. Dron observed that Estrella\n\n [was] inattentive[,] . . . ha[d] a short attention span[,] . . . often [did]\n not seem to be listening when spoken to directly[,] . . . often [did] not\n follow through on instructions[,] and fail[ed] to finish tasks. She [was]\n disorganized . . . [and avoided t]asks that require sustained mental\n effort . . . . She often los[t] things necessary for tasks or activities[,] . . .\n [and was] easily distracted . . . [and] forgetful.\n\nAdmin. R. 456. In June 2013, subsequent to the two referenced notes and closer in\n\ntime to the ALJ’s decision, Dr. Dron observed that Estrella’s\n\n anxiety symptoms continue[d] . . . . [She] continue[d] to be\n inattentive[,] . . . [and did] not seem to be listening when spoken to\n\n\n 10\n\f directly . . . . Tasks that require[d] sustained mental effort [were] still\n being avoided . . . . [Estrella] continue[d] to often lose things necessary\n for tasks or activities[,] . . . [was] still as forgetful as previously[,] . . .\n [and showed] signs of anxiety.\n\nId. at 434.\n\n The ALJ made no attempt to “reconcile” or “grapple with” the apparent\n\nlongitudinal inconsistencies in Estrella’s mental health—one of the motivations\n\nbehind Burgess’s procedural requirement of explicit consideration of “the\n\nfrequen[cy], length, nature, and extent of [a physician’s] treatment.” See Selian, 708\n\nF.3d at 418–19. This failure is especially relevant here because the first Burgess\n\nfactor, and therefore evidence supporting its satisfaction, is of heightened\n\nimportance in the context of Estrella’s claimed impairment: depression. “Cycles of\n\nimprovement and debilitating symptoms [of mental illness] are a common\n\noccurrence, and in such circumstances it is error for an ALJ to pick out a few\n\nisolated instances of improvement over a period of months or years and to treat\n\nthem as a basis for concluding a claimant is capable of working.” Garrison v. Colvin,\n\n759 F.3d 995, 1017 (9th Cir. 2014); see also Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.\n\n2008) (“A person who has a chronic disease, whether physical or psychiatric, and\n\nis under continuous treatment for it with heavy drugs, is likely to have better days\n\nand worse days . . . . Suppose that half the time she is well enough that she could\n\n\n\n 11\n\fwork, and half the time she is not. Then she could not hold down a full‐time job.”).\n\nWhen viewed alongside the evidence of the apparently cyclical nature of Estrella’s\n\ndepression, the ALJ’s two cherry‐picked treatment notes do not provide “good\n\nreasons” for minimalizing Dr. Dron’s opinion.\n\n Second, Estrella’s Global Assessment of Functioning (“GAF”) scores, which\n\nthe ALJ concluded “indicated mild depression, not marked depression,” Admin.\n\nR. 29, do not provide good reasons for assigning little weight to Dr. Dron’s\n\nopinion.1 The Social Security Administration has explained that “[u]nless [a]\n\nclinician clearly explains the reasons behind his or her GAF rating, and the period\n\nto which the rating applies, it does not provide a reliable longitudinal picture of\n\nthe claimant’s mental functioning for a disability analysis.” U.S. Soc. Sec. Admin.,\n\nOffice of Disability Programs, AM‐13066, Global Assessment of Functioning\n\n(GAF) Evidence in Disability Adjudication (Oct. 14, 2014). Furthermore, “[u]nless\n\nthe GAF rating is well supported and consistent with other evidence in the file, it\n\n\n\n\n1The Government contends Estrella waived any argument regarding the ALJ’s treatment\nof the GAF scores. However, as we have explained, claimants in Social Security cases\nmust preserve legal arguments—not necessarily factual ones. See Poupore v. Astrue, 566\nF.3d 303, 306 (2d Cir. 2009) (per curiam). Estrella preserved the legal argument that the\nALJ erroneously assigned little weight to the opinion of her treating physician.\nAccordingly, we will review her factual GAF argument in support of that claim of legal\nerror.\n\n\n 12\n\fis entitled to little weight under our rules.” Id. Because Estrella’s GAF scores were\n\nbereft of any explanation of Dr. Dron’s reasoning, and because they are\n\nunsupported by Dr. Dron’s other conclusions as to the severity of Estrella’s\n\ndepression, they do not provide “good reasons” for assigning little weight to Dr.\n\nDron’s opinion.\n\n Finally, the opinion of Dr. Christopher Flach, a one‐time consultative\n\npsychologist, similarly does not provide a good reason for diminishing Dr. Dron’s\n\nopinion. After examining Estrella once in September 2012, Dr. Flach opined that\n\nEstrella had mild problems maintaining attention and concentration but could\n\nfollow and understand simple directions and instructions, maintain a regular\n\nschedule, learn new tasks, perform complex tasks independently, and make\n\nappropriate decisions. The ALJ assigned “substantial weight” to Dr. Flach’s\n\nopinion because it “[was] consistent with [Dr. Dron’s] mental treatment notes,\n\nwhich [did] not show marked limitations.” Admin. R. 29.\n\n We have frequently “cautioned that ALJs should not rely heavily on the\n\nfindings of consultative physicians after a single examination.” Selian, 708 F.3d at\n\n419. This concern is even more pronounced in the context of mental illness where,\n\nas discussed above, a one‐time snapshot of a claimant’s status may not be\n\n\n\n\n 13\n\findicative of her longitudinal mental health. Because the ALJ made the same error\n\nwith respect to Dr. Flach as it did with respect to Dr. Dron—namely, relying on his\n\nopinion without “reconcil[ing]” or “grappl[ing] with” Estrella’s fluctuating state\n\nof mental health—we are not assured that, had the ALJ complied with the\n\nprocedural mandates of the treating physician rule, it would still have assigned\n\nsignificant weight to Dr. Flach’s opinion. The opinion of Dr. Flach, in other words,\n\nsimilarly does not provide a “good reason” for minimizing that of Dr. Dron.\n\n In light of the ALJ’s failure to “explicitly consider” the first Burgess factor\n\nbefore assigning “little weight” to the opinion of Estrella’s treating psychiatrist,\n\nand the lack of other “good reasons” to support that decision, we conclude that\n\nthe ALJ traversed the substance of the treating physician rule.2 Accordingly, we\n\nremand to the ALJ for reconsideration of Estrella’s claim for disability benefits\n\nconsistent with the procedural mandates of the SSA and this Court.3 On remand,\n\n\n\n2 Estrella also challenges the ALJ’s hypothetical question to the vocational expert.\nHowever, because she “does not challenge the ALJ’s determination that she has the\nphysical [RFC] to perform light work,” Appellant Br. 19 n.23, we do not consider this\nargument, which concerns her physical limitations resulting from her mild to moderate\nbilateral carpal tunnel syndrome.\n3Although we have the “power to enter, upon the pleadings and transcript of the record,\na judgment affirming, modifying, or reversing the decision of the Commissioner of Social\nSecurity, with or without remanding the cause for a rehearing,” 42 U.S.C. § 405(g), the\nrecord here does not “provide[] persuasive evidence of total disability that [would]\n\n\n\n 14\n\fthe ALJ should apply all four Burgess factors in determining the appropriate\n\nweight to accord to Dr. Dron’s opinion.\n\n\n CONCLUSION\n\n For the foregoing reasons, the judgment of the district court is VACATED,\n\nand the case is REMANDED to the Commissioner for further proceedings\n\nconsistent with this opinion.\n\n\n\n\nrender[] any further proceedings pointless,” Williams v. Apfel, 204 F.3d 48, 50 (2d Cir.\n1999).\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Brenda ESTRELLA, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3247‐cv\\nEstrella v. Berryhill\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n ______________\\n\\n August Term 2018\\n\\n (Argued: April 18, 2019 Decided: May 29, 2019)\\n\\n Docket No. 17‐3247\\n\\n BRENDA ESTRELLA\\n\\n Plaintiff‐Appellant,\\n\\n –v.–\\n\\n NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,\\n\\n Defendant‐Appellee.\\n\\n ______________\\n\\nBefore:\\n WESLEY, CHIN, Circuit Judges; KAPLAN, District Judge.*\\n\\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\\nStates District Court for the Eastern District of New York (Kuntz, J.) affirming the\\nCommissioner of Social Security’s denial of disability benefits. Estrella contends\\nthat the administrative law judge who reviewed her claim, and whose decision the\\nCommissioner adopted, erred by (A) failing to give controlling weight to the\\nopinion of her treating physician and (B) failing to explain the reasons for giving\\n\\n\\n*Judge Lewis A. Kaplan, United States District Court for the Southern District of\\nNew York, sitting by designation.\\n\\fthat opinion minimal weight. For the reasons that follow, we VACATE the\\njudgment of the district court and REMAND the case to the Commissioner for\\nfurther proceedings consistent with this opinion.\\n _________________\\n\\n\\n CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY,\\n for Plaintiff‐Appellant.\\n\\n CANDACE SCOTT APPLETON, Assistant United States Attorney\\n (Varuni Nelson and Arthur Swerdloff, Assistant United States\\n Attorneys, on the brief), for Richard P. Donoghue, United States\\n Attorney for the Eastern District of New York, New York, NY,\\n for Defendant‐Appellee.\\n\\n _________________\\n\\n\\nWESLEY, Circuit Judge:\\n\\n Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United\\n\\nStates District Court for the Eastern District of New York (Kuntz, J.), affirming the\\n\\nCommissioner of Social Security’s (“Commissioner”) denial of disability benefits\\n\\nunder Titles II and XVI of the Social Security Act (“SSA” or “the Act”), 42 U.S.C.\\n\\n§§ 401–434 and 1381–1383. Estrella contends that the administrative law judge\\n\\n(“ALJ”) who reviewed her claim, and whose decision the Commissioner adopted,\\n\\nerred by (A) failing to give controlling weight to the opinion of her treating\\n\\nphysician and (B) failing to explain the reasons for giving that opinion minimal\\n\\nweight. For the reasons that follow, we vacate the judgment of the district court\\n\\n\\n\\n 2\\n\\fand remand the case to the Commissioner for further proceedings consistent with\\n\\nthis opinion.\\n\\n BACKGROUND\\n\\n Estrella worked as an administrative clerk from 1994 until 2008. Beginning\\n\\nin 2002 and continuing through at least 2013, Estrella suffered from, as relevant to\\n\\nthis appeal, major depressive disorder, bipolar disorder, and Attention Deficit\\n\\nHyperactive Disorder. From 2003 to 2006, and again from 2010 to 2013, Estrella\\n\\ntook various medications to treat her mental illness and attended monthly\\n\\npsychotherapy sessions. Estrella testified that she did not seek treatment between\\n\\n2006 and 2010 because she “was in an abusive relationship[,] . . . was suffering\\n\\nfrom severe depression,” and had consequently “withdr[awn] [her]self.” Admin.\\n\\nR. 108.\\n\\n In June 2012, Estrella applied for Social Security Disability Insurance and\\n\\nSupplemental Security Income benefits. She claimed that she had been unable to\\n\\nwork since August 27, 2008 because of depression, herniated discs, knee pain,\\n\\ndiabetes, nerve damage, sleep apnea, and “spasms.” Id. at 236.\\n\\n A claimant is disabled for purposes of the SSA if she is unable to “engage in\\n\\nany substantial gainful activity by reason of any medically determinable physical\\n\\n\\n\\n\\n 3\\n\\for mental impairment [that] can be expected to result in death or which has lasted\\n\\nor can be expected to last for a continuous period of not less than 12 months.” 42\\n\\nU.S.C. § 423(d)(1)(A). The Social Security Administration has outlined a “five‐step,\\n\\nsequential evaluation process” to determine whether a claimant is disabled:\\n\\n (1) whether the claimant is currently engaged in substantial gainful\\n activity; (2) whether the claimant has a severe impairment or\\n combination of impairments; (3) whether the impairment meets or\\n equals the severity of the specified impairments in the Listing of\\n Impairments; (4) based on a “residual functional capacity”\\n assessment, whether the claimant can perform any of his or her past\\n relevant work despite the impairment; and (5) whether there are\\n significant numbers of jobs in the national economy that the claimant\\n can perform given the claimant’s residual functional capacity, age,\\n education, and work experience.\\n\\nMcIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d\\n\\n117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The\\n\\nclaimant bears the burden of proving her case at steps one through four. Id. The\\n\\nburden shifts to the Commissioner at step five. Id.\\n\\n On October 22, 2012, the Commissioner denied Estrella’s application. The\\n\\nSocial Security Administration’s Office of Disability Adjudication and Review\\n\\nsubsequently granted Estrella’s request for a hearing before an ALJ. Following a\\n\\nhearing in October 2013, and a second hearing in January 2014, the ALJ\\n\\ndetermined, in accordance with the five‐step process, the following: (1) Estrella\\n\\n\\n\\n 4\\n\\f“ha[d] not engaged in substantial gainful activity since August 27, 2008,” Admin.\\n\\nR. 25; (2) her mild lumbar and median nerve radiculopathy, mild to moderate\\n\\nbilateral carpal tunnel syndrome, diabetes, and depression were severe\\n\\nimpairments because the conditions “impose[d] more than minimal limitations”\\n\\non her ability to perform basic work activities, id.; (3) she did not have an\\n\\nimpairment or combination of impairments that met or equaled the severity of the\\n\\nspecified impairments in the Listing of Impairments, id.; (4) she had the residual\\n\\nfunctional capacity (“RFC”) to perform light work, with certain limitations, and\\n\\nshe could perform past relevant work as an administrative clerk, which would not\\n\\nbe precluded by her RFC, id. at 27, 30; and (5) she could otherwise perform a “wide\\n\\nrange of light level . . . work,” id. at 30. The ALJ accordingly denied Estrella’s\\n\\napplication. Id.\\n\\n The Office of Disability Adjudication and Review denied Estrella’s request\\n\\nfor review on May 14, 2015, at which point the ALJ’s decision became the final\\n\\ndecision of the Commissioner. On July 8, 2015, Estrella filed a complaint in the\\n\\nUnited States District Court for the Eastern District of New York, effectively\\n\\nappealing the Commissioner’s decision. On September 6, 2017, the district court\\n\\n\\n\\n\\n 5\\n\\fdenied Estrella’s motion for judgment on the pleadings and granted the\\n\\nCommissioner’s cross‐motion for the same. This appeal followed.\\n\\n\\n DISCUSSION\\n\\n I. Standard of Review\\n\\n On an appeal from the denial of disability benefits, “we focus on the\\n\\nadministrative ruling rather than the district court’s opinion.” McIntyre, 758 F.3d\\n\\nat 149 (citation omitted). “We conduct a plenary review of the administrative\\n\\nrecord to determine if there is substantial evidence, considering the record as a\\n\\nwhole, to support the Commissioner’s decision and if the correct legal standards\\n\\nhave been applied.” Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013) (per\\n\\ncuriam) (quotation marks and citation omitted). Substantial evidence is evidence\\n\\nthat “a reasonable mind might accept as adequate to support a conclusion.”\\n\\nMcIntyre, 758 F.3d at 149 (citation omitted). Although we do not require that\\n\\n“every conflict in a record be reconciled by the ALJ or the Secretary, . . . we do\\n\\n[require] that the crucial factors in any determination . . . be set forth with sufficient\\n\\nspecificity to enable us to decide whether the determination is supported by\\n\\nsubstantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).\\n\\n\\n\\n\\n 6\\n\\f II. Treating Physician Rule\\n\\n Estrella principally challenges the ALJ’s handling of her treating\\n\\npsychiatrist’s opinion. In October 2013, Dr. Felix Dron submitted a Medical Source\\n\\nStatement to the Office of Disability Adjudication and Review in which he opined\\n\\nthat Estrella’s “poor concentration, forgetful[ness], low stress tolerance, rage\\n\\noutbursts[,] . . . depression[,] and anxiety” resulted in “marked” limitations in the\\n\\nareas of making work‐related decisions and understanding, remembering, and\\n\\ncarrying out detailed instructions. Admin. R. 507–08. Although Dr. Dron had\\n\\ntreated Estrella for roughly five years, the ALJ assigned “little weight” to his\\n\\nopinion. Id. at 29. Estrella argues that, in doing so, the ALJ failed to comply with\\n\\nthe procedural mandates of the so‐called treating physician rule. We agree.\\n\\n Social Security Administration regulations, as well as our precedent,\\n\\nmandate specific procedures that an ALJ must follow in determining the\\n\\nappropriate weight to assign a treating physician’s opinion. First, the ALJ must\\n\\ndecide whether the opinion is entitled to controlling weight. “[T]he opinion of a\\n\\nclaimant’s treating physician as to the nature and severity of [an] impairment is\\n\\ngiven ‘controlling weight’ so long as it ‘is well‐supported by medically acceptable\\n\\nclinical and laboratory diagnostic techniques and is not inconsistent with the other\\n\\n\\n\\n\\n 7\\n\\fsubstantial evidence in [the] case record.’” Burgess, 537 F.3d at 128 (third brackets\\n\\nin original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides the\\n\\nopinion is not entitled to controlling weight, it must determine how much weight,\\n\\nif any, to give it. In doing so, it must “explicitly consider” the following,\\n\\nnonexclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of\\n\\ntreatment; (2) the amount of medical evidence supporting the opinion; (3) the\\n\\nconsistency of the opinion with the remaining medical evidence; and (4) whether\\n\\nthe physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per\\n\\ncuriam) (citing Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2))). At both\\n\\nsteps, the ALJ must “give good reasons in [its] notice of determination or decision\\n\\nfor the weight [it gives the] treating source’s [medical] opinion.” Halloran v.\\n\\nBarnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R. §\\n\\n404.1527(c)(2)).\\n\\n An ALJ’s failure to “explicitly” apply the Burgess factors when assigning\\n\\nweight at step two is a procedural error. Selian, 708 F.3d at 419–20. If “the\\n\\nCommissioner has not [otherwise] provided ‘good reasons’ [for its weight\\n\\nassignment],” we are unable to conclude that the error was harmless and\\n\\nconsequently remand for the ALJ to “comprehensively set forth [its] reasons.” See\\n\\n\\n\\n\\n 8\\n\\fHalloran, 362 F.3d at 33. If, however, “a searching review of the record” assures us\\n\\n“that the substance of the treating physician rule was not traversed,” we will\\n\\naffirm. See id. at 32.\\n\\n To begin, although substantial evidence supports the ALJ’s decision at step\\n\\none to assign less‐than‐controlling weight to Dr. Dron’s opinion, the same is not\\n\\ntrue of its decision at step two to assign “little weight” thereto. In deciding, at step\\n\\none, that Dr. Dron’s opinion was not entitled to controlling weight, the ALJ\\n\\npointed to two positive treatment notes from July and August 2012. The October\\n\\n2013 Medical Source Statement, it explained,\\n\\n [was] inconsistent with the evidence and [Dr. Dron’s own]\\n examination of [Estrella]. During [Dr. Dron’s] examination of\\n [Estrella], . . . most of her mental status examinations were normal,\\n she only had at most mild depression, she denied having\\n hallucination [sic], and suicidal, homicidal ideations, and there was\\n no evidence of cognitive limitations or psychosis. Most importantly,\\n from September 12, 2012 through October 15, 2013, [Estrella’s] [Global\\n Assessment of Functioning] scores [had] been consistently at 70,\\n which indicate[d] mild depression, not marked depression.\\n\\nAdmin. R. 29. In subsequently deciding, at step two, to assign “little weight” to\\n\\nDr. Dron’s opinion, the ALJ provided no additional reasoning. It thus failed to\\n\\n“explicitly consider” the first Burgess factor—“the frequen[cy], length, nature, and\\n\\nextent of [Dr. Dron’s] treatment”—before weighing the value of the opinion. See\\n\\nSelian, 708 F.3d at 418. Nowhere in the ALJ’s decision, for example, is the fact that\\n\\n\\n 9\\n\\fDr. Dron treated Estrella from 2004 to 2006, and again from 2010 to 2013. Nor did\\n\\nthe ALJ consider that Dr. Dron prescribed various psychotropic medications over\\n\\nthe course of his treatment, in addition to providing monthly psychotherapy\\n\\nsessions.\\n\\n Because the ALJ procedurally erred, the question becomes whether “a\\n\\nsearching review of the record . . . assure[s us] . . . that the substance of the . . . rule\\n\\nwas not traversed”—i.e., whether the record otherwise provides “good reasons”\\n\\nfor assigning “little weight” to Dr. Dron’s opinion. See Halloran, 362 F.3d at 32. It\\n\\ndoes not.\\n\\n First, a number of treatment notes not cited by the ALJ reflect a more serious\\n\\nimpairment than the ALJ acknowledged. For example, in January 2012, prior to\\n\\nthe only two referenced notes, Dr. Dron observed that Estrella\\n\\n [was] inattentive[,] . . . ha[d] a short attention span[,] . . . often [did]\\n not seem to be listening when spoken to directly[,] . . . often [did] not\\n follow through on instructions[,] and fail[ed] to finish tasks. She [was]\\n disorganized . . . [and avoided t]asks that require sustained mental\\n effort . . . . She often los[t] things necessary for tasks or activities[,] . . .\\n [and was] easily distracted . . . [and] forgetful.\\n\\nAdmin. R. 456. In June 2013, subsequent to the two referenced notes and closer in\\n\\ntime to the ALJ’s decision, Dr. Dron observed that Estrella’s\\n\\n anxiety symptoms continue[d] . . . . [She] continue[d] to be\\n inattentive[,] . . . [and did] not seem to be listening when spoken to\\n\\n\\n 10\\n\\f directly . . . . Tasks that require[d] sustained mental effort [were] still\\n being avoided . . . . [Estrella] continue[d] to often lose things necessary\\n for tasks or activities[,] . . . [was] still as forgetful as previously[,] . . .\\n [and showed] signs of anxiety.\\n\\nId. at 434.\\n\\n The ALJ made no attempt to “reconcile” or “grapple with” the apparent\\n\\nlongitudinal inconsistencies in Estrella’s mental health—one of the motivations\\n\\nbehind Burgess’s procedural requirement of explicit consideration of “the\\n\\nfrequen[cy], length, nature, and extent of [a physician’s] treatment.” See Selian, 708\\n\\nF.3d at 418–19. This failure is especially relevant here because the first Burgess\\n\\nfactor, and therefore evidence supporting its satisfaction, is of heightened\\n\\nimportance in the context of Estrella’s claimed impairment: depression. “Cycles of\\n\\nimprovement and debilitating symptoms [of mental illness] are a common\\n\\noccurrence, and in such circumstances it is error for an ALJ to pick out a few\\n\\nisolated instances of improvement over a period of months or years and to treat\\n\\nthem as a basis for concluding a claimant is capable of working.” Garrison v. Colvin,\\n\\n759 F.3d 995, 1017 (9th Cir. 2014); see also Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.\\n\\n2008) (“A person who has a chronic disease, whether physical or psychiatric, and\\n\\nis under continuous treatment for it with heavy drugs, is likely to have better days\\n\\nand worse days . . . . Suppose that half the time she is well enough that she could\\n\\n\\n\\n 11\\n\\fwork, and half the time she is not. Then she could not hold down a full‐time job.”).\\n\\nWhen viewed alongside the evidence of the apparently cyclical nature of Estrella’s\\n\\ndepression, the ALJ’s two cherry‐picked treatment notes do not provide “good\\n\\nreasons” for minimalizing Dr. Dron’s opinion.\\n\\n Second, Estrella’s Global Assessment of Functioning (“GAF”) scores, which\\n\\nthe ALJ concluded “indicated mild depression, not marked depression,” Admin.\\n\\nR. 29, do not provide good reasons for assigning little weight to Dr. Dron’s\\n\\nopinion.1 The Social Security Administration has explained that “[u]nless [a]\\n\\nclinician clearly explains the reasons behind his or her GAF rating, and the period\\n\\nto which the rating applies, it does not provide a reliable longitudinal picture of\\n\\nthe claimant’s mental functioning for a disability analysis.” U.S. Soc. Sec. Admin.,\\n\\nOffice of Disability Programs, AM‐13066, Global Assessment of Functioning\\n\\n(GAF) Evidence in Disability Adjudication (Oct. 14, 2014). Furthermore, “[u]nless\\n\\nthe GAF rating is well supported and consistent with other evidence in the file, it\\n\\n\\n\\n\\n1The Government contends Estrella waived any argument regarding the ALJ’s treatment\\nof the GAF scores. However, as we have explained, claimants in Social Security cases\\nmust preserve legal arguments—not necessarily factual ones. See Poupore v. Astrue, 566\\nF.3d 303, 306 (2d Cir. 2009) (per curiam). Estrella preserved the legal argument that the\\nALJ erroneously assigned little weight to the opinion of her treating physician.\\nAccordingly, we will review her factual GAF argument in support of that claim of legal\\nerror.\\n\\n\\n 12\\n\\fis entitled to little weight under our rules.” Id. Because Estrella’s GAF scores were\\n\\nbereft of any explanation of Dr. Dron’s reasoning, and because they are\\n\\nunsupported by Dr. Dron’s other conclusions as to the severity of Estrella’s\\n\\ndepression, they do not provide “good reasons” for assigning little weight to Dr.\\n\\nDron’s opinion.\\n\\n Finally, the opinion of Dr. Christopher Flach, a one‐time consultative\\n\\npsychologist, similarly does not provide a good reason for diminishing Dr. Dron’s\\n\\nopinion. After examining Estrella once in September 2012, Dr. Flach opined that\\n\\nEstrella had mild problems maintaining attention and concentration but could\\n\\nfollow and understand simple directions and instructions, maintain a regular\\n\\nschedule, learn new tasks, perform complex tasks independently, and make\\n\\nappropriate decisions. The ALJ assigned “substantial weight” to Dr. Flach’s\\n\\nopinion because it “[was] consistent with [Dr. Dron’s] mental treatment notes,\\n\\nwhich [did] not show marked limitations.” Admin. R. 29.\\n\\n We have frequently “cautioned that ALJs should not rely heavily on the\\n\\nfindings of consultative physicians after a single examination.” Selian, 708 F.3d at\\n\\n419. This concern is even more pronounced in the context of mental illness where,\\n\\nas discussed above, a one‐time snapshot of a claimant’s status may not be\\n\\n\\n\\n\\n 13\\n\\findicative of her longitudinal mental health. Because the ALJ made the same error\\n\\nwith respect to Dr. Flach as it did with respect to Dr. Dron—namely, relying on his\\n\\nopinion without “reconcil[ing]” or “grappl[ing] with” Estrella’s fluctuating state\\n\\nof mental health—we are not assured that, had the ALJ complied with the\\n\\nprocedural mandates of the treating physician rule, it would still have assigned\\n\\nsignificant weight to Dr. Flach’s opinion. The opinion of Dr. Flach, in other words,\\n\\nsimilarly does not provide a “good reason” for minimizing that of Dr. Dron.\\n\\n In light of the ALJ’s failure to “explicitly consider” the first Burgess factor\\n\\nbefore assigning “little weight” to the opinion of Estrella’s treating psychiatrist,\\n\\nand the lack of other “good reasons” to support that decision, we conclude that\\n\\nthe ALJ traversed the substance of the treating physician rule.2 Accordingly, we\\n\\nremand to the ALJ for reconsideration of Estrella’s claim for disability benefits\\n\\nconsistent with the procedural mandates of the SSA and this Court.3 On remand,\\n\\n\\n\\n2 Estrella also challenges the ALJ’s hypothetical question to the vocational expert.\\nHowever, because she “does not challenge the ALJ’s determination that she has the\\nphysical [RFC] to perform light work,” Appellant Br. 19 n.23, we do not consider this\\nargument, which concerns her physical limitations resulting from her mild to moderate\\nbilateral carpal tunnel syndrome.\\n3Although we have the “power to enter, upon the pleadings and transcript of the record,\\na judgment affirming, modifying, or reversing the decision of the Commissioner of Social\\nSecurity, with or without remanding the cause for a rehearing,” 42 U.S.C. § 405(g), the\\nrecord here does not “provide[] persuasive evidence of total disability that [would]\\n\\n\\n\\n 14\\n\\fthe ALJ should apply all four Burgess factors in determining the appropriate\\n\\nweight to accord to Dr. Dron’s opinion.\\n\\n\\n CONCLUSION\\n\\n For the foregoing reasons, the judgment of the district court is VACATED,\\n\\nand the case is REMANDED to the Commissioner for further proceedings\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\nrender[] any further proceedings pointless,” Williams v. Apfel, 204 F.3d 48, 50 (2d Cir.\\n1999).\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1994,"cells":{"id":{"kind":"number","value":4624558,"string":"4,624,558"},"name":{"kind":"string","value":"Marvin WASHINGTON, Dean Bortell as Parent of Infant Alexis Bortell, Jose Belen, Sebastien Cotte as Parent of Infant Jagger Cotte, and Cannabis Cultural Association, Inc. Plaintiffs-Appellants, v. William Pelham BARR in His Official Capacity as United States Attorney General, United States Department of Justice, Uttam Dhillon in His Official Capacity as the Acting Administrator of the Drug Enforcement Administration, United States Drug Enforcement Administration, and United States of America, Defendants-Appellees"},"name_abbreviation":{"kind":"string","value":"Washington v. Barr"},"decision_date":{"kind":"string","value":"2019-05-30"},"docket_number":{"kind":"string","value":"Docket 18-859-cv; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jacobs, Calabresi, Rakoff\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888610/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888611/\", \"author_raw\": \"\"}, {\"author\": \"GUIDO CALABRESI, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-859-cv\\nWashington et al. v. Barr et al.\\n\\n\\n\\n 1\\n 18‐859‐cv\\n Washington et al. v. Barr et al.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2018\\n\\n (Argued: December 12, 2018 Decided: May 29, 2019)\\n\\n Docket No. 18‐859‐cv\\n\\n\\n\\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\\n\\n Plaintiffs‐Appellants,\\n\\n – v. –\\n\\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\\n his official capacity as the Acting Administrator of the Drug Enforcement\\n Administration, UNITED STATES DRUG ENFORCEMENT\\n ADMINISTRATION, and UNITED STATES OF AMERICA,\\n Defendants‐Appellees,1\\n\\n\\n\\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\\n\\n\\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\\n above.\\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\\n\\n New York, sitting by designation.\\n\\n 2\\n Appeal from the judgment of the United States District Court for the\\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\\net seq. But Plaintiffs did not first pursue reclassification through the\\nadministrative process defined in the Act. Accordingly, their action is\\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\\nto exhaust their administrative remedies, we should not hear their suit at this\\ntime. In view of the unusual circumstances of this case, however, we retain\\njurisdiction in this panel for the sole purpose of promoting speedy\\nadministrative review.\\n Judge JACOBS dissents in a separate opinion.\\n\\n\\n\\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\\n Joseph A. Bondy, on the brief), New York, NY, for\\n Plaintiffs‐Appellants.\\n\\n Samuel Dolinger, Assistant United States\\n Attorney (Benjamin H. Torrance, Assistant\\n United States Attorney, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, NY,\\n for Defendants‐Appellees.\\n\\n\\n\\nGUIDO CALABRESI, Circuit Judge:\\n\\n This is the latest in a series of cases that stretch back decades and which\\n\\nhave long sought to strike down the federal government’s classification of\\n\\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\\n\\n 3\\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\\n\\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\\n\\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\\n\\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\\n\\none significant respect: among the Plaintiffs are individuals who plausibly allege\\n\\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\\n\\ntheir health. We agree with the District Court that Plaintiffs should attempt to\\n\\nexhaust their administrative remedies before seeking relief from us, but we are\\n\\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\\n\\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\\n\\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\\n\\nthis panel to take whatever action might become appropriate if the DEA does not\\n\\nact with adequate dispatch.\\n\\n STANDARD OF REVIEW\\n\\n The trial court granted Defendants’ motion under Federal Rules of Civil\\n\\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\\n\\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\\n\\n 4\\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\\n\\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\\n\\n BACKGROUND\\n\\n Parties\\n\\n As this case reaches us at the motion to dismiss stage, we must treat the\\n\\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\\n\\npleadings, Plaintiffs are several individuals and a membership organization with\\n\\nan interest in the regulation of marijuana. They assert that the classification of\\n\\ncannabis as a Schedule I substance under the CSA harms them in one or more\\n\\nways.\\n\\n Marvin Washington is an African‐American businessman working in the\\n\\nmedical marijuana space. He would like to expand his business into whole‐plant\\n\\ncannabis products and take advantage of the federal Minority Business\\n\\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\\n\\nscheduling.\\n\\n Alexis Bortell and Jagger Cotte are children with dreadful medical\\n\\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\\n\\nLeigh’s disease. They allege that they exhausted traditional treatment options\\n\\n 5\\nbefore finding success medicating with cannabis. They claim that marijuana has\\n\\nsaved their lives. Because of its Schedule I classification, however, they cannot\\n\\nbring their life‐saving medicine with them when they travel onto federal lands or\\n\\ninto states where marijuana is illegal. For Bortell, these travel limitations also\\n\\nmean that she cannot take full advantage of the veteran’s benefits to which she is\\n\\nentitled through her father. In addition, both Bortell and Cotte live in constant\\n\\nfear that their parents might be subject to arrest and prosecution for their\\n\\ninvolvement in their children’s medical treatment.\\n\\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\\n\\nstress disorder. After his honorable discharge, he became suicidal and was\\n\\nadjudged 70% disabled. He alleges that he pursued conventional therapies\\n\\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\\n\\nallowed him to manage his symptoms. He further asserts, like Bortell, that\\n\\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\\n\\nadvantage of his veteran’s benefits.\\n\\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\\n\\norganization dedicated to assisting people of color develop a presence in the\\n\\ncannabis industry. CCA is particularly focused on the way past convictions for\\n\\n 6\\npossession, cultivation, distribution, and use of marijuana have\\n\\ndisproportionately affected people of color and prevented minorities from\\n\\nparticipating in the new state‐legal marijuana industry.\\n\\n Defendants are the United States, the Attorney General, the Department of\\n\\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\\n\\nresponsible for implementing the CSA and, more particularly, for updating the\\n\\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\\n\\n Proceedings below\\n\\n Plaintiffs initiated the instant suit in the Southern District of New York in\\n\\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\\n\\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\\n\\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\\n\\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\\n\\nwas without a rational basis, (b) that the classification was arbitrary and\\n\\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\\n\\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\\n\\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\\n\\n 7\\nAmendment rights, including, inter alia, substantive due process and the\\n\\nfundamental right to travel.\\n\\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\\n\\nmedical marijuana treatment regimens and the federal government’s own\\n\\ninvolvement in medical marijuana research require a reexamination of\\n\\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\\n\\nas well as an injunction restraining Defendants from enforcing the CSA with\\n\\nrespect to cannabis. In reply, Defendants moved to dismiss.\\n\\n After argument, the District Court granted the government’s motion and\\n\\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\\n\\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\\n\\nexhaust their administrative remedies and that they did not qualify for an\\n\\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\\n\\narguments persuasive and deemed their claims to be either foreclosed by\\n\\nprecedent or without legal authority. The Court additionally held that CCA\\n\\nfailed to establish that it had standing to pursue its claim, since the relief it\\n\\nsought would not redress the injury its members had allegedly suffered. The\\n\\n 8\\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\\n\\nfollowed.\\n\\n DISCUSSION\\n\\n We resolve this case without reaching most of Plaintiffs’ disparate\\n\\narguments. As the District Court correctly observed, Plaintiffs challenge the\\n\\ncurrent classification of marijuana as a Schedule I substance under the CSA but\\n\\ndid not first bring this challenge to the agency that has the authority to\\n\\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\\n\\nthe exhaustion of administrative remedies, our precedents indicate that it is\\n\\ngenerally to be required as a prudential rule of judicial administration. We agree\\n\\nwith the District Court that exhaustion was appropriate here. But in light of the\\n\\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\\n\\n\\n\\n\\n3The CSA places in the Attorney General the power to schedule, reschedule, or\\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\\nrecommendations, as to whether such drug or other substance should be so controlled\\nor removed,” which “shall be binding on the Attorney General as to such scientific and\\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\\nor “on the petition of any interested party.” Id. § 811(a).\\n\\n 9\\nthe proceedings we must accept as true, and their argument that the\\n\\nadministrative process may not move quickly enough to afford them adequate\\n\\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\\n\\ntaking whatever action might become appropriate should the DEA not act with\\n\\nadequate dispatch. We wish to make clear, however, that, in doing so, we\\n\\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\\n\\nmarijuana should be listed or not.\\n\\n Exhaustion of administrative remedies is appropriate here.\\n\\n The administrative state is a topic of much debate these days. See Gillian\\n\\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\\n\\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\\n\\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\\n\\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\\n\\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\\n\\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\\n\\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\\n\\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\\n\\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\\n\\n 10\\nadministrative state back to the Founding). Regardless of one’s point of view, it\\n\\nremains at the moment a key part of our legal regime. The doctrines that\\n\\nregulate the relationship between courts and administrative agencies are thus of\\n\\nparticular importance. They attempt to reconcile the advantages of expertise,\\n\\nflexibility, and efficiency with the safeguards of government under law. See\\n\\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\\n\\nAmerica, 1900‐1940 (2014).\\n\\n Exhaustion of administrative remedies is one such doctrine. It holds that\\n\\nfederal courts should refrain from adjudicating a controversy if the party\\n\\nbringing suit might obtain adequate relief through a proceeding before an\\n\\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\\n\\nis entitled to judicial relief for a supposed or threatened injury until the\\n\\nprescribed administrative remedy has been exhausted.”) (internal quotation\\n\\nmarks and citations omitted). The duty to exhaust administrative remedies can\\n\\nspring from legislation or from judicial decision. “Where Congress specifically\\n\\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\\n\\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\\n\\nU.S. 516 (2002). “But [even] where Congress has not clearly required\\n\\n 11\\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\\n\\nId.\\n\\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\\n\\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\\n\\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\\n\\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\\n\\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\\n\\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\\n\\nstatutory requirement of exhaustion is not explicit, courts are guided by\\n\\ncongressional intent in determining whether application of the doctrine would\\n\\nbe consistent with the statutory scheme.”).\\n\\n Although the CSA does not mandate exhaustion of administrative\\n\\nremedies, we agree with the court below that exhaustion here is consistent with\\n\\ncongressional intent and is therefore appropriate. This judgment flows from our\\n\\nanalysis of the text and structure of the Act.\\n\\n The text of the CSA shows that Congress sought to favor administrative\\n\\ndecisionmaking. In several places, the words of the statute either presume or\\n\\ncreate an administrative process to review the classification of drugs under the\\n\\n 12\\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\\n\\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\\n\\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\\n\\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\\n\\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\\n\\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\\n\\nto the Secretary of Health and Human Services on certain medical and scientific\\n\\nmatters. And § 811(c) lists several factors the Attorney General must consider\\n\\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\\n\\n41.\\n\\n These provisions, among others, establish that Congress intended to\\n\\nimplement scheduling decisions under the CSA through an administrative\\n\\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\\n\\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\\n\\nfederal court to pursue reclassification, the language Congress devised to erect\\n\\nan administrative review process would be rendered a nullity. It follows that\\n\\nconstruing the Act to allow such behavior as a matter of course would violate a\\n\\n 13\\nbasic canon of statutory interpretation: that, if possible, every provision of a\\n\\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\\n\\n The structure of the Act reinforces the language used and hence our\\n\\nconclusion that Congress wanted aggrieved parties to pursue reclassification\\n\\nthrough agencies, and not, in the first instance, through the federal courts. The\\n\\nCSA relies on an administrative process to operate effectively. When Congress\\n\\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\\n\\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\\n\\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\\n\\nBut the statute contemplated that these initial lists would be regularly revised\\n\\nand updated by the Attorney General, in consultation with the Secretary of\\n\\nHealth and Human Services, and that this would be done according to a specific\\n\\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\\n\\nincorporates an administrative process into its structure. Indeed, its logic and\\n\\ndesign depend on administration and agency actions to realize its aims. Not to\\n\\nrequire exhaustion in the ordinary case would therefore undermine the text and\\n\\nstructure of the CSA.\\n\\n 14\\n In addition, requiring exhaustion is eminently sensible here. The Supreme\\n\\nCourt has told us that exhaustion furthers two important goals. First, it\\n\\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\\n\\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\\n\\nexhaustion recognizes “that agencies . . . have primary responsibility for the\\n\\nprograms that Congress has charged them to administer.” Id. Second,\\n\\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\\n\\nchance to resolve a dispute, thus either rendering controversies moot or\\n\\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\\n\\n Both purposes are advanced by requiring exhaustion in the instant case.\\n\\nThe Supreme Court has recognized that protecting agency authority is a\\n\\nparticularly compelling aim where “the agency proceedings in question allow\\n\\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\\n\\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\\n\\nthe question raised by Plaintiffs’ suit is whether developments in medical\\n\\nresearch and government practice should lead to the reclassification of\\n\\nmarijuana. This is precisely the kind of question that calls for the application of\\n\\nspecial knowledge. Exhaustion here “protect[s] administrative agency\\n\\n 15\\nauthority” by leaving this decision in the first instance to the specialists at the\\n\\nDEA and the Department of Health and Human Services. Id.\\n\\n Administrative exhaustion will also promote judicial efficiency in the ways\\n\\nidentified by the Supreme Court. It is conceivable that, in response to a petition\\n\\nfrom Plaintiffs along the lines advanced before us now, the DEA would\\n\\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\\n\\nthe administrative process would generate a comprehensive record that would\\n\\naid in eventual judicial review. The Supreme Court has observed that the\\n\\ncreation of such a record can be “especially” beneficial “in a complex or technical\\n\\nfactual context,” id., which is the context involved in the case at bar. Accord\\n\\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\\n\\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\\n\\n Moreover, we think that the kinds of arguments Plaintiffs advance make\\n\\nthis case well suited to administrative evaluation and inappropriate for federal\\n\\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\\n\\nevent or singular discovery has rendered the previous classification of marijuana\\n\\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\\n\\nunderstanding of the uses and dangers of marijuana warrants a change in\\n\\n 16\\nmarijuana’s classification. This argument raises a complex policy question:\\n\\nwhether the extant regulatory regime continues to advance the CSA’s goals in\\n\\nlight of the current state of our knowledge about the drug. It is possible that the\\n\\ncurrent law, though rational once, is now heading towards irrationality; it may\\n\\neven conceivably be that it has gotten there already. Courts are not especially\\n\\ngood at dealing with situations of this sort by themselves. In such circumstances,\\n\\ndialogue between courts and other law‐defining institutions, like agencies, often\\n\\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\\n\\nJ., concurring).\\n\\n A sensible response to our evolving understanding about the effects of\\n\\nmarijuana might require creating new policies just as much as changing old ones.\\n\\nThis kind of constructive governmental work, mixing adjudication and program‐\\n\\ndesign, creating policy through the balancing of competing legitimate interests, is\\n\\nnot generally best accomplished by federal courts on their own; it is, however,\\n\\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\\n\\nProcess (1938). Assuming, of course, that one can get the administrative agency\\n\\nto act.\\n\\n 17\\n For the foregoing reasons, requiring exhaustion is appropriate in the\\n\\ninstant case. Although not mandated by Congress, it is consistent with\\n\\ncongressional intent, as manifested in the CSA’s text and structure. And it\\n\\nadvances the goals that the Supreme Court has announced the doctrine serves.\\n\\nThe District Court’s decision to require exhaustion here was therefore correct.\\n\\n None of the recognized exceptions to the doctrine govern this case at this\\n time.\\n\\n Even where exhaustion is seemingly mandated by statute or decisional\\n\\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\\n\\nexceptions to the exhaustion requirement under “three broad sets of\\n\\ncircumstances.” McCarthy, 503 U.S. at 146.\\n\\n First, exhaustion may be unnecessary where it would be futile, either\\n\\nbecause agency decisionmakers are biased or because the agency has already\\n\\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\\n\\nexception currently applies here. Plaintiffs cite to various public statements by\\n\\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\\n\\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\\n\\nadministrative process would be biased against them. But Plaintiffs’ evidence,\\n\\neven if given the interpretation they suggest, does not qualify them for the\\n\\n 18\\nexception, since the public statements relied on do not implicate the relevant\\n\\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\\n\\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\\n\\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\\n\\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\\n\\nServices that matters, not the judgment of the Attorney General or the head of\\n\\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\\n\\nSecretary to the Attorney General shall be binding on the Attorney General as to\\n\\n[the] scientific and medical” evaluation of substances considered for scheduling).\\n\\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\\n\\nFutility on account of bias has, therefore, not been adequately alleged.\\n\\n The Supreme Court has further stated that exhaustion may be unnecessary\\n\\nwhere the administrative process would be incapable of granting adequate relief.\\n\\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\\n\\nmoment. Although Plaintiffs style their claims in many different ways, the\\n\\ngravamen of their argument is that marijuana should not be classified as a\\n\\nSchedule I substance under the CSA. Were a court to agree, the remedy would\\n\\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\\n\\n 19\\nis not available through the administrative process. It is precisely the remedy\\n\\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\\n\\nentitled to bypass exhaustion under this second exception either.\\n\\n Finally, exhaustion may be unnecessary where pursuing agency review\\n\\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\\n\\nparticular, “an unreasonable or indefinite timeframe for administrative action”\\n\\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\\n\\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\\n\\nevery delay will be sufficiently severe to justify waiver, however. Although, in\\n\\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\\n\\nthan the often lengthy administrative review process,” a mere preference for\\n\\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\\n\\n“[T]hreatened or impending irreparable injury flowing from delay incident to\\n\\nfollowing the prescribed [administrative] procedure” militates in favor of\\n\\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\\n\\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\\n\\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\\n\\n 20\\n Despite the apparently dire situation of some of the Plaintiffs, they do not\\n\\nyet meet the requirement for this exception to the exhaustion requirement. In\\n\\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\\n\\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\\n\\nNor have Plaintiffs otherwise explained how pursuing agency review would\\n\\nsubject them to an additional “irreparable injury flowing from delay incident” to\\n\\nthe administrative process itself. Id. at 773. Accordingly, despite their\\n\\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\\n\\nagency review.\\n\\n United States v. Kiffer does not require that we waive exhaustion here at\\n the moment.\\n\\n The exhaustion requirement under the CSA is, however, prudential, not\\n\\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\\n\\nadministrative rule, applied by courts in their discretion.\\n\\n This explains why this Court has, on at least one previous occasion,\\n\\nconsidered a challenge to the scheduling of marijuana under the CSA without\\n\\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\\n\\ncase is readily distinguishable, however, and its holding does not mean that\\n\\nexhaustion should not be required in the current case at this time. The Kiffer\\n\\n 21\\nCourt began by observing that “timely and successful use of th[e] administrative\\n\\n[process] would have obtained for [the] appellants [in that case] the very relief\\n\\nthey seek from us—a declaration either that mari[j]uana should not be subject to\\n\\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\\n\\nCourt began, then, with the assumption that exhaustion did apply. It waived the\\n\\nnormal requirement only because of two factors that do not obtain in the instant\\n\\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\\n\\ncases is generally not favored,” id. at 352, and, second and more significantly,\\n\\nbecause, at the time Kiffer was heard, the federal government had taken the\\n\\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\\n\\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\\n\\nwhere “there [wa]s some doubt whether appellants in fact [had] an\\n\\nadministrative remedy,” the Court declined to require exhaustion. Id. The\\n\\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\\n\\nheld, foreign treaty commitments have not divested the Attorney General of the\\n\\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\\n\\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\\n\\nresult is therefore not controlling. In fact, the case’s logic reinforces our\\n\\n 22\\nconclusion that Plaintiffs should attempt to exhaust their administrative\\n\\nremedies before seeking relief from us. But Kiffer also makes clear that, when\\n\\nappropriate, we do have the power to act even if the administrative agency has\\n\\nnot.\\n\\n Strong interests compel this Court to retain jurisdiction.\\n\\n This case reaches us as an appeal from a ruling on a motion to dismiss.\\n\\nUnder settled principles of adjudication, we must, therefore, accept the well‐\\n\\npleaded facts in the complaint as true. Taking the facts as alleged, and,\\n\\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\\n\\nmarijuana as true as well, we—like the District Court below—are struck by the\\n\\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\\n\\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\\n\\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\\n\\nmade pain manageable. If true, these are no small things. Plaintiffs should not\\n\\nbe required to live indefinitely with uncertainty about their access to allegedly\\n\\nlife‐saving medication or live in fear that pursuing such medical treatment may\\n\\nsubject them or their loved ones to devastating consequences.\\n\\n 23\\n Plaintiffs argue that the administrative process will prolong their ordeal\\n\\nintolerably. And their argument is not without force. Plaintiffs document that\\n\\nthe average delay in deciding petitions to reclassify drugs under the CSA is\\n\\napproximately nine years. Such long delays cast doubt on the appropriateness of\\n\\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\\n\\nAnd where, as here, health is involved, delay can be even more problematic. See\\n\\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\\n\\nattending exhaustion would subject claimants to deteriorating health . . . then\\n\\nwaiver [of exhaustion] may be appropriate”).\\n\\n Indeed, on the alleged facts, which, we repeat, we must for now take as\\n\\ntrue, undue delay by the agency might make applicable each of the three\\n\\nexceptions to exhaustion that the Supreme Court has recognized and which we\\n\\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\\n\\nhealth consequences, could make exhaustion futile. Moreover, the relief the\\n\\nagency might provide could, because of undue delay, become inadequate. And\\n\\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\\n\\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\\n\\nsufficient harm as a result of the time it would take to pursue the administrative\\n\\n 24\\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\\n\\nplausibly raise the specter of delay and plausibly suggest that the delay could\\n\\nbecome problematic. And although agencies, like legislatures, are often the best\\n\\ndecisionmakers, this is so only when they actually do decide.\\n\\n Courts have, moreover, on occasion deemed it proper to encourage\\n\\nprompt decisionmaking. Thus, where agencies have a history of dilatory\\n\\nproceedings, federal courts have sometimes retained jurisdiction of related cases\\n\\nto facilitate swift review. In Telecommunications Research and Action Center v.\\n\\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\\n\\nin part because of the failure of a federal agency to act with adequate speed. See\\n\\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\\n\\nmandamus,” the court stated, they were significant enough that it should retain\\n\\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\\n\\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\\n\\n(observing that “it is well established that we may retain jurisdiction over [a case]\\n\\n 25\\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\\n\\n1995) (Calabresi, J., concurring).4\\n\\n We think it possible that future action by us may become appropriate here.\\n\\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\\n\\nmandamus to force the DEA to act. But we exercise our discretion to keep\\n\\njurisdiction of the case in this panel, to take whatever action may become\\n\\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\\n\\npromptly. And we note that, under the unusual health‐related circumstances of\\n\\nthis case, what has counted as appropriate speed in the past may not count as\\n\\nappropriate speed here.\\n\\n In doing this, we specify that we are not retaining jurisdiction to review\\n\\nthe actions the agency may take. Jurisdiction over those may well lie solely in\\n\\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\\n\\nPlaintiffs seek agency review and so inform us within six months, we will affirm\\n\\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\\n\\n\\n\\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\\nmake clear that we make no such assertion of power in the federal courts generally.\\n\\n 26\\nseek agency review, we will dismiss the complaint as to those who do not.) But\\n\\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\\n\\nPlaintiffs may return directly to us, under our retained jurisdiction.5\\n\\n To be clear, we repeat that this case remains in our purview only to the\\n\\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\\n\\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\\n\\ninducing the agency to act promptly.\\n\\n CONCLUSION\\n\\n Because Plaintiffs failed to exhaust their administrative remedies and do\\n\\nnot at this time qualify for an exception to the exhaustion doctrine, the District\\n\\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\\n\\nagency first. But, in light of the unusual circumstances of this case, we hold the\\n\\ncase in abeyance and retain jurisdiction in this panel to take whatever further\\n\\n\\n\\n\\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\\nnot implausible, we must take them as true at this stage of the litigation. Should the\\nagency fail to act, we would, before proceeding further, however, have to look into the\\nallegations more deeply. Accordingly, should the case return to us, it may be\\nappropriate to remand to the District Court for further factfinding. At that time, if\\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\\ntheir allegations, summary judgment against them would be appropriate.\\n\\n 27\\naction might become appropriate should Plaintiffs initiate administrative review\\n\\nand the administrative process fail to operate with adequate dispatch.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4401811/\", \"author_raw\": \"GUIDO CALABRESI, Circuit Judge:\"}, {\"author\": \"DENNIS JACOBS, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DENNIS JACOBS, Circuit Judge, dissenting:\\n\\n The plaintiffs seek a declaration that the classification of marijuana as a\\nSchedule 1 substance is unconstitutional because it does not reflect contemporary\\nlearning regarding the drug’s medicinal uses. I agree with the District Court that\\nthis case must be dismissed for failure to exhaust administrative remedies in the\\nDrug Enforcement Agency (“DEA”). The majority opinion does not actually\\ndisagree, though it seems to treat lack of jurisdiction as a prudential speed bump.\\nI dissent from the majority opinion’s decision to hold the case in abeyance so that\\nwe may turn back to it if, at some future time, we get jurisdiction.\\n\\n The majority posits that jurisdiction may materialize if the plaintiffs,\\nclaiming emergency, do not obtain a prompt decision on their not‐yet filed\\npetition to the DEA‐‐but this seems to be no all‐fired emergency, given that the\\nplaintiffs are afforded half a year to file a petition on which hang supposed\\n“serious, life‐or‐death” consequences. Majority Op. 3. For the following reasons,\\nthe plaintiffs’ claims of emergency are tenuous, and constitute a further argument\\nagainst retaining jurisdiction that we do not have in order to hurry along an\\nadministrative decision on a petition that has not been filed.\\n\\n Plaintiffs Dean Bortell and Sebastien Cotte sue on behalf of their severely\\n ill children, who rely on marijuana for treatment. Bortell and Cotte\\n concede that their children get all the treatment they need, including\\n marijuana, and dwell in states that do not outlaw it or that do not enforce\\n any vestigial prohibition; their grounds for claiming urgency are that their\\n children are unable to take that medicine with them if they travel onto\\n federal lands or into states where marijuana is illegal. The parents add\\n that they suffer fear they might be subject to federal prosecution because\\n they are involved in their children’s medical treatment. I view these\\n claims as contrived and fanciful. Nobody need fear severe consequences\\n for administering medical marijuana to sick children.\\n\\n Jose Belen is a veteran with post‐traumatic stress disorder who\\n successfully uses marijuana to manage his symptoms, but complains that\\n his travel is restricted and that he cannot take full advantage of his\\n veterans benefits (presumably for the government to pay for the\\n marijuana).\\n\\n Plaintiff Marvin Washington asserts that he is impeded from seeking\\n federal aid to expand his business so that he can sell cannabis products.\\n No emergency here, and likely no standing either.\\n\\n Finally, the Cannabis Cultural Association assists people of color who wish\\n to participate in the cannabis industry but who cannot because they\\n jumped the gun, and have been arrested or convicted for cannabis use. I\\n cannot see that this Association has standing to challenge the classification\\n of marijuana under the nation’s drug laws, let alone to seek an emergency\\n resolution of that issue.\\n\\n * * *\\n\\n As to the Judgment below, which dismissed the claims for failure to\\nexhaust administrative remedies, I agree with the District Court‐‐and with the\\nmajority opinion, which agrees that exhaustion is required (at least for now).\\n\\n I part company with the majority opinion insofar as it holds the case in\\nabeyance with the expectation of taking some measures if the DEA fails to act\\nwith “adequate dispatch.” Majority Op. 27. Our failure to dismiss the case now\\nis error for several reasons that are easily stated.\\n\\n First, it is common ground that the case was properly dismissed under\\n12(b)(1) for failure to exhaust remedies; so neither this Court nor the District\\nCourt has jurisdiction to grant a remedy. And we cannot simply decide to wait\\nfor jurisdiction that (as we are properly ruling) we do not have. Our job as a\\ncircuit court is to issue mandates. We do not fulfill the requirements of the job by\\nholding a case in abeyance on the off chance that we may get jurisdiction to\\ndecide it in the future.\\n\\n Second, the terms of the hold on this case are without content: we may\\ntake “whatever further action” if the agency fails to act “promptly” or “with\\nadequate dispatch” or “[with] appropriate speed” or “with alacrity”. Majority\\nOp. 25‐27. This is of no help‐‐the DEA is unlikely to discern what “adequate\\n\\n\\n\\n\\n 2\\n\\ndispatch” or “appropriate speed” may mean for an issue that (as the majority\\nopinion observes) “stretch[es] back decades”.1 Majority Op. 2.\\n\\n * * *\\n\\n Given all this, it would be surprising if solid precedent supported this\\nprocedural invention. The majority opinion adduces none. The majority thinks\\nthat United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973), “makes clear that, when\\nappropriate, we do have the power to act even if the administrative agency has\\nnot.” Majority Op. 22. But in that case, the Court excused administrative\\nexhaustion only because the defendant had shown that exhaustion would be\\nfutile and unduly prejudicial. Id. at 351‐352 (“[I]t appears now that the\\nadministrative route for [the defendants] would at best provide an uncertain and\\nindefinitely delayed remedy . . . [and impose on them a] severe burden.”).\\nAccordingly, Kiffer stands only for the uncontroversial proposition that\\nexhaustion may be excused where it would be futile or unduly prejudicial; it\\ndoes not condone waiting around until an exception is met. The majority\\nopinion (correctly) concludes that the plaintiffs do not meet the requirements for\\neither exception. The relevance of Kiffer ends there.\\n\\n The majority opinion relies on Telecommunications Research & Action\\nCenter v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (“TRAC v. F.C.C.”); but that Court\\ndecided a mandamus petition (none is before us here). Moreover, the court did\\nnot hold the case in abeyance, but retained jurisdiction (that it already had) only\\nto ensure that the agency fulfilled its sua sponte promise to address the issue\\nexpeditiously. And the court gave the agency specific direction. Id. at 80‐81\\n(directing the agency to advise the Court of its progress every 60 days).\\n\\n\\n 1 The majority opinion also limits its “purview” to a failure of the agency\\nto act with “adequate, if deliberate, speed.” Majority Op. 26. The echo of that\\nphrase from Brown v. Board of Education II is unfortunate, however, given that,\\nin the many decades since, school integration is an unfinished project. The\\nphrase seems to be derived from Admiralty law in the days of sail, which\\nlikewise offers no useful context. And in Francis Thompson’s ʺHound of\\nHeaven,ʺ “deliberate speed” is the pace by which God pursues us. No help there\\neither.\\n\\n 3\\n\\n The majority opinion’s “e.g.” cite to a single Ninth Circuit summary order\\ndoes not bespeak a wealth of examples. In that case as well, the court considered\\na mandamus petition. It decided that a writ of mandamus was not warranted,\\nand declined to retain jurisdiction, citing only TRAC v. F.C.C. for the proposition\\nthat it could have retained jurisdiction if it wanted to. In re Pesticide Action\\nNetwork N. Am., 532 F. App’x 649, 652 (9th Cir. 2013). (The parenthetical quote\\nfrom Pesticide classifies itself as “well‐established”‐‐often a tell that the point is a\\nnovation.) The majority’s remaining authority, a concurring opinion by Judge\\nCalabresi, advances the speculative idea that courts may prod government when\\nlaws outlive the views of the bien pensant community. None of these cases\\nsupports the idea that a court is permitted to hold a case in abeyance because the\\ncourt may on contingency gain jurisdiction to hear it, and can bully the agency in\\nthe meantime. As near as I can make it out, the holding of the majority opinion\\nis: a court without jurisdiction should proceed with caution.\\n\\n * * *\\n\\n I doubt that the DEA will be hurrying its work on an application that these\\nplaintiffs have not yet filed, seeking administrative action on an old and ramified\\ncontroversy. Unless the panel opinion precipitates a swift administrative\\nrejection, there is no reason to anticipate a swift ruling that entails the assessment\\nof countervailing risks, the pendency of legislation, and the eliciting of opinions\\non issues of medicine and public health. So I fully expect to see further\\nproceedings in this appeal. No one can tell what this panel could do then, or\\n(more accurately) would do. In the meantime, the one thing that will not happen\\nis the issuance of the mandate, since I presume the majority will not thus oust\\nthis panel and this Court of the ability to take “whatever further action” may be\\nnecessary. Majority Op. 26. As and when this case returns to this Court and this\\npanel, I will be an interested and bemused spectator.\\n\\n\\n\\n\\n 4\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4401811/\", \"author_raw\": \"DENNIS JACOBS, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"CALABRESI"},"judge3":{"kind":"string","value":"RAKOFF"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624558/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Marvin WASHINGTON, Dean Bortell as Parent of Infant Alexis Bortell, Jose Belen, Sebastien Cotte as Parent of Infant Jagger Cotte, and Cannabis Cultural Association, Inc. Plaintiffs-Appellants, v. William Pelham BARR in His Official Capacity as United States Attorney General, United States Department of Justice, Uttam Dhillon in His Official Capacity as the Acting Administrator of the Drug Enforcement Administration, United States Drug Enforcement Administration, and United States of America, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-30\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-859-cv\nWashington et al. v. Barr et al.\n\n\n\n 1\n 18‐859‐cv\n Washington et al. v. Barr et al.\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n August Term, 2018\n\n (Argued: December 12, 2018 Decided: May 29, 2019)\n\n Docket No. 18‐859‐cv\n\n\n\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\n\n Plaintiffs‐Appellants,\n\n – v. –\n\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\n his official capacity as the Acting Administrator of the Drug Enforcement\n Administration, UNITED STATES DRUG ENFORCEMENT\n ADMINISTRATION, and UNITED STATES OF AMERICA,\n Defendants‐Appellees,1\n\n\n\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\n\n\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\n above.\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\n\n New York, sitting by designation.\n\n 2\n Appeal from the judgment of the United States District Court for the\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\net seq. But Plaintiffs did not first pursue reclassification through the\nadministrative process defined in the Act. Accordingly, their action is\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\nto exhaust their administrative remedies, we should not hear their suit at this\ntime. In view of the unusual circumstances of this case, however, we retain\njurisdiction in this panel for the sole purpose of promoting speedy\nadministrative review.\n Judge JACOBS dissents in a separate opinion.\n\n\n\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\n Joseph A. Bondy, on the brief), New York, NY, for\n Plaintiffs‐Appellants.\n\n Samuel Dolinger, Assistant United States\n Attorney (Benjamin H. Torrance, Assistant\n United States Attorney, on the brief), for Geoffrey\n S. Berman, United States Attorney for the\n Southern District of New York, New York, NY,\n for Defendants‐Appellees.\n\n\n\nGUIDO CALABRESI, Circuit Judge:\n\n This is the latest in a series of cases that stretch back decades and which\n\nhave long sought to strike down the federal government’s classification of\n\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\n\n 3\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\n\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\n\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\n\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\n\none significant respect: among the Plaintiffs are individuals who plausibly allege\n\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\n\ntheir health. We agree with the District Court that Plaintiffs should attempt to\n\nexhaust their administrative remedies before seeking relief from us, but we are\n\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\n\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\n\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\n\nthis panel to take whatever action might become appropriate if the DEA does not\n\nact with adequate dispatch.\n\n STANDARD OF REVIEW\n\n The trial court granted Defendants’ motion under Federal Rules of Civil\n\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\n\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\n\n 4\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\n\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\n\n BACKGROUND\n\n Parties\n\n As this case reaches us at the motion to dismiss stage, we must treat the\n\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\n\npleadings, Plaintiffs are several individuals and a membership organization with\n\nan interest in the regulation of marijuana. They assert that the classification of\n\ncannabis as a Schedule I substance under the CSA harms them in one or more\n\nways.\n\n Marvin Washington is an African‐American businessman working in the\n\nmedical marijuana space. He would like to expand his business into whole‐plant\n\ncannabis products and take advantage of the federal Minority Business\n\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\n\nscheduling.\n\n Alexis Bortell and Jagger Cotte are children with dreadful medical\n\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\n\nLeigh’s disease. They allege that they exhausted traditional treatment options\n\n 5\nbefore finding success medicating with cannabis. They claim that marijuana has\n\nsaved their lives. Because of its Schedule I classification, however, they cannot\n\nbring their life‐saving medicine with them when they travel onto federal lands or\n\ninto states where marijuana is illegal. For Bortell, these travel limitations also\n\nmean that she cannot take full advantage of the veteran’s benefits to which she is\n\nentitled through her father. In addition, both Bortell and Cotte live in constant\n\nfear that their parents might be subject to arrest and prosecution for their\n\ninvolvement in their children’s medical treatment.\n\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\n\nstress disorder. After his honorable discharge, he became suicidal and was\n\nadjudged 70% disabled. He alleges that he pursued conventional therapies\n\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\n\nallowed him to manage his symptoms. He further asserts, like Bortell, that\n\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\n\nadvantage of his veteran’s benefits.\n\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\n\norganization dedicated to assisting people of color develop a presence in the\n\ncannabis industry. CCA is particularly focused on the way past convictions for\n\n 6\npossession, cultivation, distribution, and use of marijuana have\n\ndisproportionately affected people of color and prevented minorities from\n\nparticipating in the new state‐legal marijuana industry.\n\n Defendants are the United States, the Attorney General, the Department of\n\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\n\nresponsible for implementing the CSA and, more particularly, for updating the\n\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\n\n Proceedings below\n\n Plaintiffs initiated the instant suit in the Southern District of New York in\n\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\n\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\n\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\n\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\n\nwas without a rational basis, (b) that the classification was arbitrary and\n\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\n\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\n\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\n\n 7\nAmendment rights, including, inter alia, substantive due process and the\n\nfundamental right to travel.\n\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\n\nmedical marijuana treatment regimens and the federal government’s own\n\ninvolvement in medical marijuana research require a reexamination of\n\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\n\nas well as an injunction restraining Defendants from enforcing the CSA with\n\nrespect to cannabis. In reply, Defendants moved to dismiss.\n\n After argument, the District Court granted the government’s motion and\n\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\n\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\n\nexhaust their administrative remedies and that they did not qualify for an\n\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\n\narguments persuasive and deemed their claims to be either foreclosed by\n\nprecedent or without legal authority. The Court additionally held that CCA\n\nfailed to establish that it had standing to pursue its claim, since the relief it\n\nsought would not redress the injury its members had allegedly suffered. The\n\n 8\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\n\nfollowed.\n\n DISCUSSION\n\n We resolve this case without reaching most of Plaintiffs’ disparate\n\narguments. As the District Court correctly observed, Plaintiffs challenge the\n\ncurrent classification of marijuana as a Schedule I substance under the CSA but\n\ndid not first bring this challenge to the agency that has the authority to\n\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\n\nthe exhaustion of administrative remedies, our precedents indicate that it is\n\ngenerally to be required as a prudential rule of judicial administration. We agree\n\nwith the District Court that exhaustion was appropriate here. But in light of the\n\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\n\n\n\n\n3The CSA places in the Attorney General the power to schedule, reschedule, or\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\nrecommendations, as to whether such drug or other substance should be so controlled\nor removed,” which “shall be binding on the Attorney General as to such scientific and\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\nor “on the petition of any interested party.” Id. § 811(a).\n\n 9\nthe proceedings we must accept as true, and their argument that the\n\nadministrative process may not move quickly enough to afford them adequate\n\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\n\ntaking whatever action might become appropriate should the DEA not act with\n\nadequate dispatch. We wish to make clear, however, that, in doing so, we\n\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\n\nmarijuana should be listed or not.\n\n Exhaustion of administrative remedies is appropriate here.\n\n The administrative state is a topic of much debate these days. See Gillian\n\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\n\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\n\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\n\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\n\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\n\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\n\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\n\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\n\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\n\n 10\nadministrative state back to the Founding). Regardless of one’s point of view, it\n\nremains at the moment a key part of our legal regime. The doctrines that\n\nregulate the relationship between courts and administrative agencies are thus of\n\nparticular importance. They attempt to reconcile the advantages of expertise,\n\nflexibility, and efficiency with the safeguards of government under law. See\n\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\n\nAmerica, 1900‐1940 (2014).\n\n Exhaustion of administrative remedies is one such doctrine. It holds that\n\nfederal courts should refrain from adjudicating a controversy if the party\n\nbringing suit might obtain adequate relief through a proceeding before an\n\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\n\nis entitled to judicial relief for a supposed or threatened injury until the\n\nprescribed administrative remedy has been exhausted.”) (internal quotation\n\nmarks and citations omitted). The duty to exhaust administrative remedies can\n\nspring from legislation or from judicial decision. “Where Congress specifically\n\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\n\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\n\nU.S. 516 (2002). “But [even] where Congress has not clearly required\n\n 11\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\n\nId.\n\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\n\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\n\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\n\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\n\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\n\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\n\nstatutory requirement of exhaustion is not explicit, courts are guided by\n\ncongressional intent in determining whether application of the doctrine would\n\nbe consistent with the statutory scheme.”).\n\n Although the CSA does not mandate exhaustion of administrative\n\nremedies, we agree with the court below that exhaustion here is consistent with\n\ncongressional intent and is therefore appropriate. This judgment flows from our\n\nanalysis of the text and structure of the Act.\n\n The text of the CSA shows that Congress sought to favor administrative\n\ndecisionmaking. In several places, the words of the statute either presume or\n\ncreate an administrative process to review the classification of drugs under the\n\n 12\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\n\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\n\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\n\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\n\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\n\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\n\nto the Secretary of Health and Human Services on certain medical and scientific\n\nmatters. And § 811(c) lists several factors the Attorney General must consider\n\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\n\n41.\n\n These provisions, among others, establish that Congress intended to\n\nimplement scheduling decisions under the CSA through an administrative\n\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\n\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\n\nfederal court to pursue reclassification, the language Congress devised to erect\n\nan administrative review process would be rendered a nullity. It follows that\n\nconstruing the Act to allow such behavior as a matter of course would violate a\n\n 13\nbasic canon of statutory interpretation: that, if possible, every provision of a\n\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\n\n The structure of the Act reinforces the language used and hence our\n\nconclusion that Congress wanted aggrieved parties to pursue reclassification\n\nthrough agencies, and not, in the first instance, through the federal courts. The\n\nCSA relies on an administrative process to operate effectively. When Congress\n\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\n\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\n\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\n\nBut the statute contemplated that these initial lists would be regularly revised\n\nand updated by the Attorney General, in consultation with the Secretary of\n\nHealth and Human Services, and that this would be done according to a specific\n\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\n\nincorporates an administrative process into its structure. Indeed, its logic and\n\ndesign depend on administration and agency actions to realize its aims. Not to\n\nrequire exhaustion in the ordinary case would therefore undermine the text and\n\nstructure of the CSA.\n\n 14\n In addition, requiring exhaustion is eminently sensible here. The Supreme\n\nCourt has told us that exhaustion furthers two important goals. First, it\n\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\n\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\n\nexhaustion recognizes “that agencies . . . have primary responsibility for the\n\nprograms that Congress has charged them to administer.” Id. Second,\n\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\n\nchance to resolve a dispute, thus either rendering controversies moot or\n\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\n\n Both purposes are advanced by requiring exhaustion in the instant case.\n\nThe Supreme Court has recognized that protecting agency authority is a\n\nparticularly compelling aim where “the agency proceedings in question allow\n\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\n\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\n\nthe question raised by Plaintiffs’ suit is whether developments in medical\n\nresearch and government practice should lead to the reclassification of\n\nmarijuana. This is precisely the kind of question that calls for the application of\n\nspecial knowledge. Exhaustion here “protect[s] administrative agency\n\n 15\nauthority” by leaving this decision in the first instance to the specialists at the\n\nDEA and the Department of Health and Human Services. Id.\n\n Administrative exhaustion will also promote judicial efficiency in the ways\n\nidentified by the Supreme Court. It is conceivable that, in response to a petition\n\nfrom Plaintiffs along the lines advanced before us now, the DEA would\n\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\n\nthe administrative process would generate a comprehensive record that would\n\naid in eventual judicial review. The Supreme Court has observed that the\n\ncreation of such a record can be “especially” beneficial “in a complex or technical\n\nfactual context,” id., which is the context involved in the case at bar. Accord\n\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\n\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\n\n Moreover, we think that the kinds of arguments Plaintiffs advance make\n\nthis case well suited to administrative evaluation and inappropriate for federal\n\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\n\nevent or singular discovery has rendered the previous classification of marijuana\n\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\n\nunderstanding of the uses and dangers of marijuana warrants a change in\n\n 16\nmarijuana’s classification. This argument raises a complex policy question:\n\nwhether the extant regulatory regime continues to advance the CSA’s goals in\n\nlight of the current state of our knowledge about the drug. It is possible that the\n\ncurrent law, though rational once, is now heading towards irrationality; it may\n\neven conceivably be that it has gotten there already. Courts are not especially\n\ngood at dealing with situations of this sort by themselves. In such circumstances,\n\ndialogue between courts and other law‐defining institutions, like agencies, often\n\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\n\nJ., concurring).\n\n A sensible response to our evolving understanding about the effects of\n\nmarijuana might require creating new policies just as much as changing old ones.\n\nThis kind of constructive governmental work, mixing adjudication and program‐\n\ndesign, creating policy through the balancing of competing legitimate interests, is\n\nnot generally best accomplished by federal courts on their own; it is, however,\n\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\n\nProcess (1938). Assuming, of course, that one can get the administrative agency\n\nto act.\n\n 17\n For the foregoing reasons, requiring exhaustion is appropriate in the\n\ninstant case. Although not mandated by Congress, it is consistent with\n\ncongressional intent, as manifested in the CSA’s text and structure. And it\n\nadvances the goals that the Supreme Court has announced the doctrine serves.\n\nThe District Court’s decision to require exhaustion here was therefore correct.\n\n None of the recognized exceptions to the doctrine govern this case at this\n time.\n\n Even where exhaustion is seemingly mandated by statute or decisional\n\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\n\nexceptions to the exhaustion requirement under “three broad sets of\n\ncircumstances.” McCarthy, 503 U.S. at 146.\n\n First, exhaustion may be unnecessary where it would be futile, either\n\nbecause agency decisionmakers are biased or because the agency has already\n\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\n\nexception currently applies here. Plaintiffs cite to various public statements by\n\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\n\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\n\nadministrative process would be biased against them. But Plaintiffs’ evidence,\n\neven if given the interpretation they suggest, does not qualify them for the\n\n 18\nexception, since the public statements relied on do not implicate the relevant\n\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\n\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\n\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\n\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\n\nServices that matters, not the judgment of the Attorney General or the head of\n\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\n\nSecretary to the Attorney General shall be binding on the Attorney General as to\n\n[the] scientific and medical” evaluation of substances considered for scheduling).\n\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\n\nFutility on account of bias has, therefore, not been adequately alleged.\n\n The Supreme Court has further stated that exhaustion may be unnecessary\n\nwhere the administrative process would be incapable of granting adequate relief.\n\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\n\nmoment. Although Plaintiffs style their claims in many different ways, the\n\ngravamen of their argument is that marijuana should not be classified as a\n\nSchedule I substance under the CSA. Were a court to agree, the remedy would\n\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\n\n 19\nis not available through the administrative process. It is precisely the remedy\n\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\n\nentitled to bypass exhaustion under this second exception either.\n\n Finally, exhaustion may be unnecessary where pursuing agency review\n\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\n\nparticular, “an unreasonable or indefinite timeframe for administrative action”\n\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\n\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\n\nevery delay will be sufficiently severe to justify waiver, however. Although, in\n\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\n\nthan the often lengthy administrative review process,” a mere preference for\n\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\n\n“[T]hreatened or impending irreparable injury flowing from delay incident to\n\nfollowing the prescribed [administrative] procedure” militates in favor of\n\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\n\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\n\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\n\n 20\n Despite the apparently dire situation of some of the Plaintiffs, they do not\n\nyet meet the requirement for this exception to the exhaustion requirement. In\n\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\n\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\n\nNor have Plaintiffs otherwise explained how pursuing agency review would\n\nsubject them to an additional “irreparable injury flowing from delay incident” to\n\nthe administrative process itself. Id. at 773. Accordingly, despite their\n\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\n\nagency review.\n\n United States v. Kiffer does not require that we waive exhaustion here at\n the moment.\n\n The exhaustion requirement under the CSA is, however, prudential, not\n\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\n\nadministrative rule, applied by courts in their discretion.\n\n This explains why this Court has, on at least one previous occasion,\n\nconsidered a challenge to the scheduling of marijuana under the CSA without\n\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\n\ncase is readily distinguishable, however, and its holding does not mean that\n\nexhaustion should not be required in the current case at this time. The Kiffer\n\n 21\nCourt began by observing that “timely and successful use of th[e] administrative\n\n[process] would have obtained for [the] appellants [in that case] the very relief\n\nthey seek from us—a declaration either that mari[j]uana should not be subject to\n\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\n\nCourt began, then, with the assumption that exhaustion did apply. It waived the\n\nnormal requirement only because of two factors that do not obtain in the instant\n\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\n\ncases is generally not favored,” id. at 352, and, second and more significantly,\n\nbecause, at the time Kiffer was heard, the federal government had taken the\n\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\n\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\n\nwhere “there [wa]s some doubt whether appellants in fact [had] an\n\nadministrative remedy,” the Court declined to require exhaustion. Id. The\n\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\n\nheld, foreign treaty commitments have not divested the Attorney General of the\n\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\n\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\n\nresult is therefore not controlling. In fact, the case’s logic reinforces our\n\n 22\nconclusion that Plaintiffs should attempt to exhaust their administrative\n\nremedies before seeking relief from us. But Kiffer also makes clear that, when\n\nappropriate, we do have the power to act even if the administrative agency has\n\nnot.\n\n Strong interests compel this Court to retain jurisdiction.\n\n This case reaches us as an appeal from a ruling on a motion to dismiss.\n\nUnder settled principles of adjudication, we must, therefore, accept the well‐\n\npleaded facts in the complaint as true. Taking the facts as alleged, and,\n\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\n\nmarijuana as true as well, we—like the District Court below—are struck by the\n\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\n\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\n\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\n\nmade pain manageable. If true, these are no small things. Plaintiffs should not\n\nbe required to live indefinitely with uncertainty about their access to allegedly\n\nlife‐saving medication or live in fear that pursuing such medical treatment may\n\nsubject them or their loved ones to devastating consequences.\n\n 23\n Plaintiffs argue that the administrative process will prolong their ordeal\n\nintolerably. And their argument is not without force. Plaintiffs document that\n\nthe average delay in deciding petitions to reclassify drugs under the CSA is\n\napproximately nine years. Such long delays cast doubt on the appropriateness of\n\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\n\nAnd where, as here, health is involved, delay can be even more problematic. See\n\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\n\nattending exhaustion would subject claimants to deteriorating health . . . then\n\nwaiver [of exhaustion] may be appropriate”).\n\n Indeed, on the alleged facts, which, we repeat, we must for now take as\n\ntrue, undue delay by the agency might make applicable each of the three\n\nexceptions to exhaustion that the Supreme Court has recognized and which we\n\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\n\nhealth consequences, could make exhaustion futile. Moreover, the relief the\n\nagency might provide could, because of undue delay, become inadequate. And\n\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\n\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\n\nsufficient harm as a result of the time it would take to pursue the administrative\n\n 24\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\n\nplausibly raise the specter of delay and plausibly suggest that the delay could\n\nbecome problematic. And although agencies, like legislatures, are often the best\n\ndecisionmakers, this is so only when they actually do decide.\n\n Courts have, moreover, on occasion deemed it proper to encourage\n\nprompt decisionmaking. Thus, where agencies have a history of dilatory\n\nproceedings, federal courts have sometimes retained jurisdiction of related cases\n\nto facilitate swift review. In Telecommunications Research and Action Center v.\n\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\n\nin part because of the failure of a federal agency to act with adequate speed. See\n\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\n\nmandamus,” the court stated, they were significant enough that it should retain\n\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\n\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\n\n(observing that “it is well established that we may retain jurisdiction over [a case]\n\n 25\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\n\n1995) (Calabresi, J., concurring).4\n\n We think it possible that future action by us may become appropriate here.\n\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\n\nmandamus to force the DEA to act. But we exercise our discretion to keep\n\njurisdiction of the case in this panel, to take whatever action may become\n\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\n\npromptly. And we note that, under the unusual health‐related circumstances of\n\nthis case, what has counted as appropriate speed in the past may not count as\n\nappropriate speed here.\n\n In doing this, we specify that we are not retaining jurisdiction to review\n\nthe actions the agency may take. Jurisdiction over those may well lie solely in\n\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\n\nPlaintiffs seek agency review and so inform us within six months, we will affirm\n\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\n\n\n\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\nmake clear that we make no such assertion of power in the federal courts generally.\n\n 26\nseek agency review, we will dismiss the complaint as to those who do not.) But\n\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\n\nPlaintiffs may return directly to us, under our retained jurisdiction.5\n\n To be clear, we repeat that this case remains in our purview only to the\n\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\n\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\n\ninducing the agency to act promptly.\n\n CONCLUSION\n\n Because Plaintiffs failed to exhaust their administrative remedies and do\n\nnot at this time qualify for an exception to the exhaustion doctrine, the District\n\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\n\nagency first. But, in light of the unusual circumstances of this case, we hold the\n\ncase in abeyance and retain jurisdiction in this panel to take whatever further\n\n\n\n\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\nnot implausible, we must take them as true at this stage of the litigation. Should the\nagency fail to act, we would, before proceeding further, however, have to look into the\nallegations more deeply. Accordingly, should the case return to us, it may be\nappropriate to remand to the District Court for further factfinding. At that time, if\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\ntheir allegations, summary judgment against them would be appropriate.\n\n 27\naction might become appropriate should Plaintiffs initiate administrative review\n\nand the administrative process fail to operate with adequate dispatch.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Marvin WASHINGTON, Dean Bortell as Parent of Infant Alexis Bortell, Jose Belen, Sebastien Cotte as Parent of Infant Jagger Cotte, and Cannabis Cultural Association, Inc. Plaintiffs-Appellants, v. William Pelham BARR in His Official Capacity as United States Attorney General, United States Department of Justice, Uttam Dhillon in His Official Capacity as the Acting Administrator of the Drug Enforcement Administration, United States Drug Enforcement Administration, and United States of America, Defendants-Appellees\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-30\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-859-cv\\nWashington et al. v. Barr et al.\\n\\n\\n\\n 1\\n 18‐859‐cv\\n Washington et al. v. Barr et al.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2018\\n\\n (Argued: December 12, 2018 Decided: May 29, 2019)\\n\\n Docket No. 18‐859‐cv\\n\\n\\n\\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\\n\\n Plaintiffs‐Appellants,\\n\\n – v. –\\n\\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\\n his official capacity as the Acting Administrator of the Drug Enforcement\\n Administration, UNITED STATES DRUG ENFORCEMENT\\n ADMINISTRATION, and UNITED STATES OF AMERICA,\\n Defendants‐Appellees,1\\n\\n\\n\\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\\n\\n\\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\\n above.\\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\\n\\n New York, sitting by designation.\\n\\n 2\\n Appeal from the judgment of the United States District Court for the\\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\\net seq. But Plaintiffs did not first pursue reclassification through the\\nadministrative process defined in the Act. Accordingly, their action is\\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\\nto exhaust their administrative remedies, we should not hear their suit at this\\ntime. In view of the unusual circumstances of this case, however, we retain\\njurisdiction in this panel for the sole purpose of promoting speedy\\nadministrative review.\\n Judge JACOBS dissents in a separate opinion.\\n\\n\\n\\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\\n Joseph A. Bondy, on the brief), New York, NY, for\\n Plaintiffs‐Appellants.\\n\\n Samuel Dolinger, Assistant United States\\n Attorney (Benjamin H. Torrance, Assistant\\n United States Attorney, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, NY,\\n for Defendants‐Appellees.\\n\\n\\n\\nGUIDO CALABRESI, Circuit Judge:\\n\\n This is the latest in a series of cases that stretch back decades and which\\n\\nhave long sought to strike down the federal government’s classification of\\n\\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\\n\\n 3\\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\\n\\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\\n\\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\\n\\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\\n\\none significant respect: among the Plaintiffs are individuals who plausibly allege\\n\\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\\n\\ntheir health. We agree with the District Court that Plaintiffs should attempt to\\n\\nexhaust their administrative remedies before seeking relief from us, but we are\\n\\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\\n\\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\\n\\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\\n\\nthis panel to take whatever action might become appropriate if the DEA does not\\n\\nact with adequate dispatch.\\n\\n STANDARD OF REVIEW\\n\\n The trial court granted Defendants’ motion under Federal Rules of Civil\\n\\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\\n\\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\\n\\n 4\\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\\n\\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\\n\\n BACKGROUND\\n\\n Parties\\n\\n As this case reaches us at the motion to dismiss stage, we must treat the\\n\\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\\n\\npleadings, Plaintiffs are several individuals and a membership organization with\\n\\nan interest in the regulation of marijuana. They assert that the classification of\\n\\ncannabis as a Schedule I substance under the CSA harms them in one or more\\n\\nways.\\n\\n Marvin Washington is an African‐American businessman working in the\\n\\nmedical marijuana space. He would like to expand his business into whole‐plant\\n\\ncannabis products and take advantage of the federal Minority Business\\n\\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\\n\\nscheduling.\\n\\n Alexis Bortell and Jagger Cotte are children with dreadful medical\\n\\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\\n\\nLeigh’s disease. They allege that they exhausted traditional treatment options\\n\\n 5\\nbefore finding success medicating with cannabis. They claim that marijuana has\\n\\nsaved their lives. Because of its Schedule I classification, however, they cannot\\n\\nbring their life‐saving medicine with them when they travel onto federal lands or\\n\\ninto states where marijuana is illegal. For Bortell, these travel limitations also\\n\\nmean that she cannot take full advantage of the veteran’s benefits to which she is\\n\\nentitled through her father. In addition, both Bortell and Cotte live in constant\\n\\nfear that their parents might be subject to arrest and prosecution for their\\n\\ninvolvement in their children’s medical treatment.\\n\\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\\n\\nstress disorder. After his honorable discharge, he became suicidal and was\\n\\nadjudged 70% disabled. He alleges that he pursued conventional therapies\\n\\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\\n\\nallowed him to manage his symptoms. He further asserts, like Bortell, that\\n\\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\\n\\nadvantage of his veteran’s benefits.\\n\\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\\n\\norganization dedicated to assisting people of color develop a presence in the\\n\\ncannabis industry. CCA is particularly focused on the way past convictions for\\n\\n 6\\npossession, cultivation, distribution, and use of marijuana have\\n\\ndisproportionately affected people of color and prevented minorities from\\n\\nparticipating in the new state‐legal marijuana industry.\\n\\n Defendants are the United States, the Attorney General, the Department of\\n\\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\\n\\nresponsible for implementing the CSA and, more particularly, for updating the\\n\\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\\n\\n Proceedings below\\n\\n Plaintiffs initiated the instant suit in the Southern District of New York in\\n\\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\\n\\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\\n\\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\\n\\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\\n\\nwas without a rational basis, (b) that the classification was arbitrary and\\n\\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\\n\\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\\n\\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\\n\\n 7\\nAmendment rights, including, inter alia, substantive due process and the\\n\\nfundamental right to travel.\\n\\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\\n\\nmedical marijuana treatment regimens and the federal government’s own\\n\\ninvolvement in medical marijuana research require a reexamination of\\n\\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\\n\\nas well as an injunction restraining Defendants from enforcing the CSA with\\n\\nrespect to cannabis. In reply, Defendants moved to dismiss.\\n\\n After argument, the District Court granted the government’s motion and\\n\\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\\n\\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\\n\\nexhaust their administrative remedies and that they did not qualify for an\\n\\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\\n\\narguments persuasive and deemed their claims to be either foreclosed by\\n\\nprecedent or without legal authority. The Court additionally held that CCA\\n\\nfailed to establish that it had standing to pursue its claim, since the relief it\\n\\nsought would not redress the injury its members had allegedly suffered. The\\n\\n 8\\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\\n\\nfollowed.\\n\\n DISCUSSION\\n\\n We resolve this case without reaching most of Plaintiffs’ disparate\\n\\narguments. As the District Court correctly observed, Plaintiffs challenge the\\n\\ncurrent classification of marijuana as a Schedule I substance under the CSA but\\n\\ndid not first bring this challenge to the agency that has the authority to\\n\\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\\n\\nthe exhaustion of administrative remedies, our precedents indicate that it is\\n\\ngenerally to be required as a prudential rule of judicial administration. We agree\\n\\nwith the District Court that exhaustion was appropriate here. But in light of the\\n\\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\\n\\n\\n\\n\\n3The CSA places in the Attorney General the power to schedule, reschedule, or\\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\\nrecommendations, as to whether such drug or other substance should be so controlled\\nor removed,” which “shall be binding on the Attorney General as to such scientific and\\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\\nor “on the petition of any interested party.” Id. § 811(a).\\n\\n 9\\nthe proceedings we must accept as true, and their argument that the\\n\\nadministrative process may not move quickly enough to afford them adequate\\n\\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\\n\\ntaking whatever action might become appropriate should the DEA not act with\\n\\nadequate dispatch. We wish to make clear, however, that, in doing so, we\\n\\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\\n\\nmarijuana should be listed or not.\\n\\n Exhaustion of administrative remedies is appropriate here.\\n\\n The administrative state is a topic of much debate these days. See Gillian\\n\\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\\n\\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\\n\\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\\n\\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\\n\\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\\n\\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\\n\\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\\n\\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\\n\\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\\n\\n 10\\nadministrative state back to the Founding). Regardless of one’s point of view, it\\n\\nremains at the moment a key part of our legal regime. The doctrines that\\n\\nregulate the relationship between courts and administrative agencies are thus of\\n\\nparticular importance. They attempt to reconcile the advantages of expertise,\\n\\nflexibility, and efficiency with the safeguards of government under law. See\\n\\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\\n\\nAmerica, 1900‐1940 (2014).\\n\\n Exhaustion of administrative remedies is one such doctrine. It holds that\\n\\nfederal courts should refrain from adjudicating a controversy if the party\\n\\nbringing suit might obtain adequate relief through a proceeding before an\\n\\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\\n\\nis entitled to judicial relief for a supposed or threatened injury until the\\n\\nprescribed administrative remedy has been exhausted.”) (internal quotation\\n\\nmarks and citations omitted). The duty to exhaust administrative remedies can\\n\\nspring from legislation or from judicial decision. “Where Congress specifically\\n\\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\\n\\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\\n\\nU.S. 516 (2002). “But [even] where Congress has not clearly required\\n\\n 11\\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\\n\\nId.\\n\\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\\n\\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\\n\\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\\n\\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\\n\\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\\n\\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\\n\\nstatutory requirement of exhaustion is not explicit, courts are guided by\\n\\ncongressional intent in determining whether application of the doctrine would\\n\\nbe consistent with the statutory scheme.”).\\n\\n Although the CSA does not mandate exhaustion of administrative\\n\\nremedies, we agree with the court below that exhaustion here is consistent with\\n\\ncongressional intent and is therefore appropriate. This judgment flows from our\\n\\nanalysis of the text and structure of the Act.\\n\\n The text of the CSA shows that Congress sought to favor administrative\\n\\ndecisionmaking. In several places, the words of the statute either presume or\\n\\ncreate an administrative process to review the classification of drugs under the\\n\\n 12\\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\\n\\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\\n\\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\\n\\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\\n\\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\\n\\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\\n\\nto the Secretary of Health and Human Services on certain medical and scientific\\n\\nmatters. And § 811(c) lists several factors the Attorney General must consider\\n\\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\\n\\n41.\\n\\n These provisions, among others, establish that Congress intended to\\n\\nimplement scheduling decisions under the CSA through an administrative\\n\\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\\n\\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\\n\\nfederal court to pursue reclassification, the language Congress devised to erect\\n\\nan administrative review process would be rendered a nullity. It follows that\\n\\nconstruing the Act to allow such behavior as a matter of course would violate a\\n\\n 13\\nbasic canon of statutory interpretation: that, if possible, every provision of a\\n\\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\\n\\n The structure of the Act reinforces the language used and hence our\\n\\nconclusion that Congress wanted aggrieved parties to pursue reclassification\\n\\nthrough agencies, and not, in the first instance, through the federal courts. The\\n\\nCSA relies on an administrative process to operate effectively. When Congress\\n\\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\\n\\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\\n\\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\\n\\nBut the statute contemplated that these initial lists would be regularly revised\\n\\nand updated by the Attorney General, in consultation with the Secretary of\\n\\nHealth and Human Services, and that this would be done according to a specific\\n\\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\\n\\nincorporates an administrative process into its structure. Indeed, its logic and\\n\\ndesign depend on administration and agency actions to realize its aims. Not to\\n\\nrequire exhaustion in the ordinary case would therefore undermine the text and\\n\\nstructure of the CSA.\\n\\n 14\\n In addition, requiring exhaustion is eminently sensible here. The Supreme\\n\\nCourt has told us that exhaustion furthers two important goals. First, it\\n\\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\\n\\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\\n\\nexhaustion recognizes “that agencies . . . have primary responsibility for the\\n\\nprograms that Congress has charged them to administer.” Id. Second,\\n\\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\\n\\nchance to resolve a dispute, thus either rendering controversies moot or\\n\\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\\n\\n Both purposes are advanced by requiring exhaustion in the instant case.\\n\\nThe Supreme Court has recognized that protecting agency authority is a\\n\\nparticularly compelling aim where “the agency proceedings in question allow\\n\\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\\n\\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\\n\\nthe question raised by Plaintiffs’ suit is whether developments in medical\\n\\nresearch and government practice should lead to the reclassification of\\n\\nmarijuana. This is precisely the kind of question that calls for the application of\\n\\nspecial knowledge. Exhaustion here “protect[s] administrative agency\\n\\n 15\\nauthority” by leaving this decision in the first instance to the specialists at the\\n\\nDEA and the Department of Health and Human Services. Id.\\n\\n Administrative exhaustion will also promote judicial efficiency in the ways\\n\\nidentified by the Supreme Court. It is conceivable that, in response to a petition\\n\\nfrom Plaintiffs along the lines advanced before us now, the DEA would\\n\\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\\n\\nthe administrative process would generate a comprehensive record that would\\n\\naid in eventual judicial review. The Supreme Court has observed that the\\n\\ncreation of such a record can be “especially” beneficial “in a complex or technical\\n\\nfactual context,” id., which is the context involved in the case at bar. Accord\\n\\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\\n\\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\\n\\n Moreover, we think that the kinds of arguments Plaintiffs advance make\\n\\nthis case well suited to administrative evaluation and inappropriate for federal\\n\\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\\n\\nevent or singular discovery has rendered the previous classification of marijuana\\n\\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\\n\\nunderstanding of the uses and dangers of marijuana warrants a change in\\n\\n 16\\nmarijuana’s classification. This argument raises a complex policy question:\\n\\nwhether the extant regulatory regime continues to advance the CSA’s goals in\\n\\nlight of the current state of our knowledge about the drug. It is possible that the\\n\\ncurrent law, though rational once, is now heading towards irrationality; it may\\n\\neven conceivably be that it has gotten there already. Courts are not especially\\n\\ngood at dealing with situations of this sort by themselves. In such circumstances,\\n\\ndialogue between courts and other law‐defining institutions, like agencies, often\\n\\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\\n\\nJ., concurring).\\n\\n A sensible response to our evolving understanding about the effects of\\n\\nmarijuana might require creating new policies just as much as changing old ones.\\n\\nThis kind of constructive governmental work, mixing adjudication and program‐\\n\\ndesign, creating policy through the balancing of competing legitimate interests, is\\n\\nnot generally best accomplished by federal courts on their own; it is, however,\\n\\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\\n\\nProcess (1938). Assuming, of course, that one can get the administrative agency\\n\\nto act.\\n\\n 17\\n For the foregoing reasons, requiring exhaustion is appropriate in the\\n\\ninstant case. Although not mandated by Congress, it is consistent with\\n\\ncongressional intent, as manifested in the CSA’s text and structure. And it\\n\\nadvances the goals that the Supreme Court has announced the doctrine serves.\\n\\nThe District Court’s decision to require exhaustion here was therefore correct.\\n\\n None of the recognized exceptions to the doctrine govern this case at this\\n time.\\n\\n Even where exhaustion is seemingly mandated by statute or decisional\\n\\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\\n\\nexceptions to the exhaustion requirement under “three broad sets of\\n\\ncircumstances.” McCarthy, 503 U.S. at 146.\\n\\n First, exhaustion may be unnecessary where it would be futile, either\\n\\nbecause agency decisionmakers are biased or because the agency has already\\n\\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\\n\\nexception currently applies here. Plaintiffs cite to various public statements by\\n\\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\\n\\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\\n\\nadministrative process would be biased against them. But Plaintiffs’ evidence,\\n\\neven if given the interpretation they suggest, does not qualify them for the\\n\\n 18\\nexception, since the public statements relied on do not implicate the relevant\\n\\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\\n\\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\\n\\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\\n\\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\\n\\nServices that matters, not the judgment of the Attorney General or the head of\\n\\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\\n\\nSecretary to the Attorney General shall be binding on the Attorney General as to\\n\\n[the] scientific and medical” evaluation of substances considered for scheduling).\\n\\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\\n\\nFutility on account of bias has, therefore, not been adequately alleged.\\n\\n The Supreme Court has further stated that exhaustion may be unnecessary\\n\\nwhere the administrative process would be incapable of granting adequate relief.\\n\\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\\n\\nmoment. Although Plaintiffs style their claims in many different ways, the\\n\\ngravamen of their argument is that marijuana should not be classified as a\\n\\nSchedule I substance under the CSA. Were a court to agree, the remedy would\\n\\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\\n\\n 19\\nis not available through the administrative process. It is precisely the remedy\\n\\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\\n\\nentitled to bypass exhaustion under this second exception either.\\n\\n Finally, exhaustion may be unnecessary where pursuing agency review\\n\\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\\n\\nparticular, “an unreasonable or indefinite timeframe for administrative action”\\n\\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\\n\\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\\n\\nevery delay will be sufficiently severe to justify waiver, however. Although, in\\n\\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\\n\\nthan the often lengthy administrative review process,” a mere preference for\\n\\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\\n\\n“[T]hreatened or impending irreparable injury flowing from delay incident to\\n\\nfollowing the prescribed [administrative] procedure” militates in favor of\\n\\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\\n\\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\\n\\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\\n\\n 20\\n Despite the apparently dire situation of some of the Plaintiffs, they do not\\n\\nyet meet the requirement for this exception to the exhaustion requirement. In\\n\\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\\n\\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\\n\\nNor have Plaintiffs otherwise explained how pursuing agency review would\\n\\nsubject them to an additional “irreparable injury flowing from delay incident” to\\n\\nthe administrative process itself. Id. at 773. Accordingly, despite their\\n\\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\\n\\nagency review.\\n\\n United States v. Kiffer does not require that we waive exhaustion here at\\n the moment.\\n\\n The exhaustion requirement under the CSA is, however, prudential, not\\n\\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\\n\\nadministrative rule, applied by courts in their discretion.\\n\\n This explains why this Court has, on at least one previous occasion,\\n\\nconsidered a challenge to the scheduling of marijuana under the CSA without\\n\\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\\n\\ncase is readily distinguishable, however, and its holding does not mean that\\n\\nexhaustion should not be required in the current case at this time. The Kiffer\\n\\n 21\\nCourt began by observing that “timely and successful use of th[e] administrative\\n\\n[process] would have obtained for [the] appellants [in that case] the very relief\\n\\nthey seek from us—a declaration either that mari[j]uana should not be subject to\\n\\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\\n\\nCourt began, then, with the assumption that exhaustion did apply. It waived the\\n\\nnormal requirement only because of two factors that do not obtain in the instant\\n\\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\\n\\ncases is generally not favored,” id. at 352, and, second and more significantly,\\n\\nbecause, at the time Kiffer was heard, the federal government had taken the\\n\\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\\n\\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\\n\\nwhere “there [wa]s some doubt whether appellants in fact [had] an\\n\\nadministrative remedy,” the Court declined to require exhaustion. Id. The\\n\\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\\n\\nheld, foreign treaty commitments have not divested the Attorney General of the\\n\\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\\n\\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\\n\\nresult is therefore not controlling. In fact, the case’s logic reinforces our\\n\\n 22\\nconclusion that Plaintiffs should attempt to exhaust their administrative\\n\\nremedies before seeking relief from us. But Kiffer also makes clear that, when\\n\\nappropriate, we do have the power to act even if the administrative agency has\\n\\nnot.\\n\\n Strong interests compel this Court to retain jurisdiction.\\n\\n This case reaches us as an appeal from a ruling on a motion to dismiss.\\n\\nUnder settled principles of adjudication, we must, therefore, accept the well‐\\n\\npleaded facts in the complaint as true. Taking the facts as alleged, and,\\n\\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\\n\\nmarijuana as true as well, we—like the District Court below—are struck by the\\n\\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\\n\\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\\n\\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\\n\\nmade pain manageable. If true, these are no small things. Plaintiffs should not\\n\\nbe required to live indefinitely with uncertainty about their access to allegedly\\n\\nlife‐saving medication or live in fear that pursuing such medical treatment may\\n\\nsubject them or their loved ones to devastating consequences.\\n\\n 23\\n Plaintiffs argue that the administrative process will prolong their ordeal\\n\\nintolerably. And their argument is not without force. Plaintiffs document that\\n\\nthe average delay in deciding petitions to reclassify drugs under the CSA is\\n\\napproximately nine years. Such long delays cast doubt on the appropriateness of\\n\\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\\n\\nAnd where, as here, health is involved, delay can be even more problematic. See\\n\\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\\n\\nattending exhaustion would subject claimants to deteriorating health . . . then\\n\\nwaiver [of exhaustion] may be appropriate”).\\n\\n Indeed, on the alleged facts, which, we repeat, we must for now take as\\n\\ntrue, undue delay by the agency might make applicable each of the three\\n\\nexceptions to exhaustion that the Supreme Court has recognized and which we\\n\\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\\n\\nhealth consequences, could make exhaustion futile. Moreover, the relief the\\n\\nagency might provide could, because of undue delay, become inadequate. And\\n\\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\\n\\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\\n\\nsufficient harm as a result of the time it would take to pursue the administrative\\n\\n 24\\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\\n\\nplausibly raise the specter of delay and plausibly suggest that the delay could\\n\\nbecome problematic. And although agencies, like legislatures, are often the best\\n\\ndecisionmakers, this is so only when they actually do decide.\\n\\n Courts have, moreover, on occasion deemed it proper to encourage\\n\\nprompt decisionmaking. Thus, where agencies have a history of dilatory\\n\\nproceedings, federal courts have sometimes retained jurisdiction of related cases\\n\\nto facilitate swift review. In Telecommunications Research and Action Center v.\\n\\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\\n\\nin part because of the failure of a federal agency to act with adequate speed. See\\n\\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\\n\\nmandamus,” the court stated, they were significant enough that it should retain\\n\\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\\n\\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\\n\\n(observing that “it is well established that we may retain jurisdiction over [a case]\\n\\n 25\\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\\n\\n1995) (Calabresi, J., concurring).4\\n\\n We think it possible that future action by us may become appropriate here.\\n\\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\\n\\nmandamus to force the DEA to act. But we exercise our discretion to keep\\n\\njurisdiction of the case in this panel, to take whatever action may become\\n\\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\\n\\npromptly. And we note that, under the unusual health‐related circumstances of\\n\\nthis case, what has counted as appropriate speed in the past may not count as\\n\\nappropriate speed here.\\n\\n In doing this, we specify that we are not retaining jurisdiction to review\\n\\nthe actions the agency may take. Jurisdiction over those may well lie solely in\\n\\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\\n\\nPlaintiffs seek agency review and so inform us within six months, we will affirm\\n\\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\\n\\n\\n\\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\\nmake clear that we make no such assertion of power in the federal courts generally.\\n\\n 26\\nseek agency review, we will dismiss the complaint as to those who do not.) But\\n\\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\\n\\nPlaintiffs may return directly to us, under our retained jurisdiction.5\\n\\n To be clear, we repeat that this case remains in our purview only to the\\n\\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\\n\\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\\n\\ninducing the agency to act promptly.\\n\\n CONCLUSION\\n\\n Because Plaintiffs failed to exhaust their administrative remedies and do\\n\\nnot at this time qualify for an exception to the exhaustion doctrine, the District\\n\\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\\n\\nagency first. But, in light of the unusual circumstances of this case, we hold the\\n\\ncase in abeyance and retain jurisdiction in this panel to take whatever further\\n\\n\\n\\n\\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\\nnot implausible, we must take them as true at this stage of the litigation. Should the\\nagency fail to act, we would, before proceeding further, however, have to look into the\\nallegations more deeply. Accordingly, should the case return to us, it may be\\nappropriate to remand to the District Court for further factfinding. At that time, if\\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\\ntheir allegations, summary judgment against them would be appropriate.\\n\\n 27\\naction might become appropriate should Plaintiffs initiate administrative review\\n\\nand the administrative process fail to operate with adequate dispatch.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1995,"cells":{"id":{"kind":"number","value":4624559,"string":"4,624,559"},"name":{"kind":"string","value":"Lindsey A. KIDD, Plaintiff-Appellant, v. THOMSON REUTERS CORPORATION, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Kidd v. Thomson Reuters Corp."},"decision_date":{"kind":"string","value":"2019-05-30"},"docket_number":{"kind":"string","value":"17-3550; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Calabresi, Droney, Underhill\", \"parties\": \"\", \"opinions\": [{\"author\": \"DRONEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐3550\\n Kidd v. Thomson Reuters Corp.\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term, 2018\\n 7 No. 17‐3550\\n 8\\n 9 LINDSEY A. KIDD,\\n10 Plaintiff‐Appellant,\\n11\\n12 v.\\n13\\n14 THOMSON REUTERS CORPORATION,\\n15 Defendant‐Appellee.\\n16\\n17\\n18\\n19 Appeal from the United States District Court\\n20 for the Southern District of New York.\\n21 No. 16‐1668 — Jesse M. Furman, Judge.\\n22\\n23 ARGUED: FEBRUARY 4, 2019\\n24 DECIDED: MAY 30, 2019\\n25\\n26\\n27 Before: CALABRESI, DRONEY, Circuit Judges, and UNDERHILL, Chief\\n28 District Judge.*\\n\\n29\\n30\\n\\n\\n\\n *Judge Stefan R. Underhill, of the United States District Court for the\\n District of Connecticut, sitting by designation.\\n\\f 1 Appeal from a judgment of the United States District Court for\\n 2 the Southern District of New York following the grant of Defendant‐\\n 3 Appellee Thomson Reuters’ motion for summary judgment. We hold\\n 4 that the district court was correct in concluding that Thomson Reuters\\n 5 is not a “consumer reporting agency,” 15 U.S.C. § 1681a(f), and\\n 6 therefore is not subject to the Federal Consumer Reporting Act.\\n 7 Accordingly, we AFFIRM the district court’s judgment.\\n 8\\n 9\\n10 JAMES A. FRANCIS, Francis &\\n11 Mailman, Philadelphia, PA, for\\n12 Appellant.\\n13\\n14 KEVIN KING (Eric C. Bosset & Neil K.\\n15 Roman, on the brief), Covington &\\n16 Burling, Washington, D.C., for\\n17 Appellee.\\n18\\n19 DRONEY, Circuit Judge:\\n\\n20 Plaintiff‐Appellant Lindsey A. Kidd was the subject of a\\n\\n21 background check as part of an employment application process with\\n\\n22 the state of Georgia Department of Health (“Department”). The\\n\\n23 background check was performed using Defendant‐Appellee\\n\\n24 Thomson Reuters’ subscription‐based internet platform, “CLEAR.”\\n\\n25 The CLEAR report obtained by the Department falsely showed that\\n\\n26 Kidd had been previously convicted of theft. Believing the report to\\n\\n27 be correct, the Department rejected Kidd’s application. Kidd then\\n\\n\\n\\n 2\\n\\f 1 filed this action in the Southern District of New York, alleging that\\n\\n 2 Thomson Reuters is a “consumer reporting agency” subject to the Fair\\n\\n 3 Credit Reporting Act and that it violated that act by providing the\\n\\n 4 false report. After the conclusion of discovery, the district court\\n\\n 5 (Furman, J.) granted Thomson Reuters’ motion for summary\\n\\n 6 judgment, concluding that because Thomson Reuters is not a\\n\\n 7 “consumer reporting agency,” it is not subject to the Act. For the\\n\\n 8 reasons that follow, we AFFIRM the district court’s judgment in favor\\n\\n 9 of Thomson Reuters.\\n\\n10 I.\\n11\\n12 The Fair Credit Reporting Act (“FCRA”) regulates, among\\n\\n13 other things, the circumstances in which a “consumer reporting\\n\\n14 agency” may furnish “consumer reports” to third parties, and the\\n\\n15 information contained in those reports. 15 U.S.C. §§ 1681b, 1681c.\\n\\n16 Typically, consumer reporting agencies sell consumer reports to\\n\\n17 lenders, credit card companies, insurers, and employers for credit,\\n\\n18 insurance, and employment decisions. CONSUMER FINANCIAL\\n\\n19 PROTECTION BUREAU, LIST OF CONSUMER REPORTING COMPANIES, 3\\n\\n\\n\\n 3\\n\\f 1 (2019), https://www.consumerfinance.gov/consumer‐tools/credit‐\\n\\n 2 reports‐and‐scores/consumer‐reporting‐companies/companies‐list/\\n\\n 3 (last visited Apr. 23, 2019). Examples of government‐designated\\n\\n 4 consumer reporting agencies are Equifax, Transunion, and Experian.\\n\\n 5 Id. at 8. If a “consumer reporting agency” fails to comply with the\\n\\n 6 Act, it may be subject to civil liability to consumers, which includes\\n\\n 7 actual and punitive damages. 15 U.S.C. §§ 1681n, 1681o. This appeal\\n\\n 8 turns on whether Thomson Reuters qualifies as a “consumer\\n\\n 9 reporting agency” under the Act.\\n\\n10 A.1\\n\\n11 Thomson Reuters operates an online research platform named\\n\\n12 “Consolidated Lead Evaluation and Reporting,” or “CLEAR,” that\\n\\n13 provides its subscribers summary reports of motor vehicle records,\\n\\n14 court records, aliases, the status of professional licenses, real property\\n\\n15 transactions, and similar information.2 CLEAR subscribers are\\n\\n\\n 1 The following facts are undisputed and taken from the parties’ summary\\n judgment submissions.\\n\\n 2 Although Thomson Reuters maintains that it is not subject to the FCRA, it\\n acknowledges that it is regulated by the Gramm‐Leach‐Bliley Act, 15 U.S.C. § 6801\\n et seq., the Drivers’ Privacy Protection Act, 18 U.S.C. § 2721 et seq., and state voter‐\\n identification laws. These statutes are not relevant to the parties’ dispute, however.\\n 4\\n\\f 1 principally government agencies and law enforcement entities, but\\n\\n 2 also include financial institutions, corporate security offices, and\\n\\n 3 insurance claims departments. The platform receives approximately\\n\\n 4 100,000 search queries each day and is designed to help combat fraud\\n\\n 5 and assist public agencies in criminal investigations.\\n\\n 6 Thomson Reuters prohibits its subscribers from utilizing\\n\\n 7 CLEAR for any purpose covered by the FCRA, such as credit inquiries\\n\\n 8 or background checks related to employment, and has established\\n\\n 9 measures to prevent those uses of its reports. For example, the\\n\\n10 company markets CLEAR for law enforcement, fraud prevention, or\\n\\n11 identity verification purposes only. Employees tasked with\\n\\n12 marketing CLEAR to potential subscribers are trained that CLEAR\\n\\n13 “may not be promoted or used for FCRA‐regulated purposes.” App’x\\n\\n14 at 141.\\n\\n15 Thomson Reuters also screens potential subscribers before\\n\\n16 granting them access to CLEAR. They are required to indicate how\\n\\n17 they intend to use the platform on an “Account Validation and\\n\\n18 Credentialing” form, which Thomson Reuters employees then review\\n\\n\\n\\n 5\\n\\f 1 to confirm that the use of CLEAR is not for an FCRA purpose. If an\\n\\n 2 employee suspects an applicant intends to use the platform for an\\n\\n 3 improper purpose, the applicant will be flagged for review by a\\n\\n 4 “Credentialing Committee” that may reject the applicant or require\\n\\n 5 the applicant to affirm she will not improperly use CLEAR. Once\\n\\n 6 approved, the customer enters into a contract with Thomson Reuters\\n\\n 7 in which she specifically represents that she will not use CLEAR for a\\n\\n 8 purpose covered by the FCRA. Thomson Reuters “offers\\n\\n 9 complimentary training to new CLEAR subscribers” to ensure\\n\\n10 compliance. App’x at 145. Every two years, Thomson Reuters requires\\n\\n11 subscribers to reaffirm their commitment to using CLEAR for a non‐\\n\\n12 FCRA purpose, and before a subscriber may enter an individual\\n\\n13 search request, she must verify that her search is for an approved\\n\\n14 purpose.\\n\\n15 Thomson Reuters also investigates reports of CLEAR misuse\\n\\n16 through its in‐house compliance office. If the office determines misuse\\n\\n17 has occurred it will “remind[] the subscriber that FCRA use of CLEAR\\n\\n18 is prohibited and require[] the subscriber to provide a written\\n\\n\\n\\n 6\\n\\f 1 ‘attestation’ of its authorized uses of CLEAR and its intent to enforce\\n\\n 2 the subscriber’s contractual obligation not to use CLEAR for any\\n\\n 3 FCRA purpose.” App’x at 146. It is undisputed that reports of misuse\\n\\n 4 are rare. Of the 144 million CLEAR searches conducted between 2012\\n\\n 5 and 2016, only 46 were alleged to be for an FCRA purpose.3 Thomson\\n\\n 6 Reuters determined that 12 of the 46 reports did not involve misuse,\\n\\n 7 required the users responsible for 24 of the searches to reaffirm their\\n\\n 8 promise to perform non‐FCRA searches, and terminated the accounts\\n\\n 9 of the subscribers responsible for the remaining 10 improper searches.\\n\\n10 B.\\n\\n11 This case involves one of those 46 reports of misuse. In\\n\\n12 November 2014, Plaintiff‐Appellant Lindsey Kidd was the leading\\n\\n13 candidate for a position as an “Immunization Program Consultant”\\n\\n14 with the Georgia Department of Public Health, a CLEAR subscriber.\\n\\n15 The Department received Kidd’s authorization to obtain a\\n\\n16 background check during the application process. Using the CLEAR\\n\\n17 platform, the Department discovered that Kidd had a prior state\\n\\n\\n\\n\\n 3 This reflects only reported misuses of the platform.\\n 7\\n\\f 1 conviction for theft. Although the Department regarded Kidd as the\\n\\n 2 “top candidate” for the position, the report led the Department not to\\n\\n 3 hire her. But Kidd had not been convicted of theft; the CLEAR report\\n\\n 4 contained false information. Kidd was not able to correct the mistake\\n\\n 5 in the report in time to obtain the position.\\n\\n 6 Kidd subsequently filed a putative class action complaint in the\\n\\n 7 Southern District of New York against Thomson Reuters in March\\n\\n 8 2016, alleging that operating the CLEAR platform renders Thomson\\n\\n 9 Reuters a “consumer reporting agency” under the FCRA and that the\\n\\n10 company violated several provisions of the Act in providing false\\n\\n11 information to the Georgia agency.\\n\\n12 After the conclusion of discovery, the district court granted\\n\\n13 summary judgment in favor of Thomson Reuters. Starting with the\\n\\n14 text of the FCRA, the district court determined that an entity is a\\n\\n15 “consumer reporting agency” under the Act if it “regularly assembles\\n\\n16 consumer information with a particular purpose or subjective\\n\\n17 intention—namely, of providing it to third parties for use (actual or\\n\\n18 expected) in connection with an FCRA‐regulated end, such as\\n\\n\\n\\n 8\\n\\f 1 employment eligibility.” Kidd v. Thomson Reuters Corp., 299 F. Supp.\\n\\n 2 3d 400, 404 (S.D.N.Y. 2017). “That is because,” the court explained,\\n\\n 3 “an entity qualifies as a [consumer reporting agency] only if it\\n\\n 4 ‘regularly’ assembles information on consumers ‘for the purpose of\\n\\n 5 furnishing consumer reports to third parties,’ and ‘purpose’ means\\n\\n 6 ‘[t]he reason for which something is done or created or for which\\n\\n 7 something exists’ or to ‘[h]ave as one’s intention or objective.’” Id.\\n\\n 8 (quoting Purpose, OXFORD ENGLISH ONLINE DICTIONARY,\\n\\n 9 https://en.oxforddictionaries.com/definition/purpose).\\n\\n10 Applying that definition to Thomson Reuters, the district court\\n\\n11 determined that the company does not qualify as a “consumer\\n\\n12 reporting agency” because Thomson Reuters did not intend to furnish\\n\\n13 “consumer reports” through the CLEAR platform. The court\\n\\n14 explained that Thomson Reuters took “affirmative steps . . . at every\\n\\n15 stage of the customer acquisition, application, contracting, and\\n\\n16 support processes to ensure that subscribers are not using CLEAR for\\n\\n17 FCRA‐regulated purposes,” thereby establishing that it did not\\n\\n\\n\\n\\n 9\\n\\f 1 intend to furnish reports for FCRA purposes. Thus, its reports would\\n\\n 2 not constitute “consumer reports.” Id. at 407.\\n\\n 3 Kidd timely appealed from the district court’s judgment.\\n\\n 4 II.\\n\\n 5 We review a “district court’s grant of a motion for summary\\n\\n 6 judgment de novo, construing the evidence in the light most favorable\\n\\n 7 to the non‐moving party.” Irby v. N.Y.C. Transit Auth., 262 F.3d 412,\\n\\n 8 413 (2d Cir. 2001) (internal quotation marks omitted).\\n\\n 9 Kidd’s appeal presents a question of first impression for us:\\n\\n10 Whether, to qualify as a “consumer reporting agency” under the\\n\\n11 FCRA, an entity must specifically intend to furnish a “consumer\\n\\n12 report.” For the reasons that follow, we conclude that it must have\\n\\n13 such an intent, and we affirm the district court’s order granting\\n\\n14 summary judgment in favor of Thomson Reuters.\\n\\n15 A.\\n\\n16 To answer questions of statutory interpretation, we “begin with\\n\\n17 the text.” Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 741 (2017).\\n\\n18 Under the Act, a “consumer reporting agency” is:\\n\\n\\n\\n 10\\n\\f 1 any person4 which, for monetary fees, dues, or on a\\n 2 cooperative nonprofit basis, regularly engages in whole\\n 3 or in part in the practice of assembling or evaluating\\n 4 consumer credit information or other information on\\n 5 consumers for the purpose of furnishing consumer reports\\n 6 to third parties, and which uses any means or facility of\\n 7 interstate commerce for the purpose of preparing or\\n 8 furnishing consumer reports.\\n 9\\n10 15 U.S.C. § 1681a(f) (emphasis added). The Act defines a “consumer\\n\\n11 report” as:\\n\\n12 any written, oral, or other communication of any\\n13 information by a consumer reporting agency bearing on\\n14 a consumer’s credit worthiness, credit standing, credit\\n15 capacity, character, general reputation, personal\\n16 characteristics, or mode of living which is used or\\n17 expected to be used or collected in whole or in part for\\n18 the purpose of serving as a factor in establishing the\\n19 consumer’s eligibility for—(A) credit or insurance to be\\n20 used primarily for personal, family or household\\n21 purposes; (B) employment purposes; or (C) any other\\n22 purpose authorized under section 1681b of this title.\\n23\\n24 15 U.S.C. § 1681a(d)(1).5 Thus, the principal uses of “consumer\\n\\n25 reports” are for determining eligibility of consumers for extensions of\\n\\n26 credit, providing insurance, or reviewing employment applications.\\n\\n\\n 4Under the Act, “person” includes individuals and corporate entities. 15 U.S.C. §\\n 1681a(b).\\n\\n 5 Section 1681b enumerates the permissible purposes to which a “consumer\\n report” may be put under the FCRA. Those purposes include credit inquiries and\\n employment purposes. See 15 U.S.C. § 1681b.\\n 11\\n\\f 1 The ordinary meaning of “‘purpose’ corresponds loosely with\\n\\n 2 the common‐law concept of specific intent.”6 United States v. Bailey,\\n\\n 3 444 U.S. 394, 405 (1980); cf. United States v. Technodyne LLC, 753 F.3d\\n\\n 4 368, 383 (2d Cir. 2014) (finding, in the civil context, that the phrase “in\\n\\n 5 order to” constitutes a specific intent requirement). Specific intent\\n\\n 6 may be found where a person acts with “[t]he intent to accomplish\\n\\n 7 the precise . . . act.” Specific Intent, BLACK’S LAW DICTIONARY (10th ed.\\n\\n 8 2014).7 Thus, “a person who causes a particular result is said to act\\n\\n 9 purpose[ly] if ‘he consciously desires that result, whatever the\\n\\n10 likelihood of that result happening from his conduct.’” Bailey, 444 U.S.\\n\\n11 at 404 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 445\\n\\n12 (1978)). This understanding comports with the common dictionary\\n\\n13 definition of “purpose” as “something set up as an object or end to be\\n\\n\\n\\n\\n 6\\n “When a term goes undefined in a statute, we give the term\\n its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).\\n\\n\\n 7“Corporate intent is shown by the actions and statements of the officers, directors,\\n and employees who are in positions of authority or have apparent authority to\\n make policy for the corporation.” District Lodge 26, Intern. Ass’n of Machinists &\\n Aerospace Workers, AFL‐CIO v. United Techs. Corp., 610 F.3d 44, 53 (2d Cir. 2010)\\n (quoting United States v. Basic Constr. Co., 711 F.2d 570, 573 (4th Cir. 1983)\\n (alteration omitted)).\\n 12\\n\\f 1 attained.” Purpose, MERRIAM‐WEBSTER ONLINE DICTIONARY,\\n\\n 2 https://www.merriam‐webster.com/dictionary/purpose (last visited\\n\\n 3 March 21, 2019).\\n\\n 4 The meaning of “for the purpose of” in § 1681a(f) is therefore\\n\\n 5 plain: A “consumer reporting agency” is an entity that intends the\\n\\n 6 information it furnishes to constitute a “consumer report.” See\\n\\n 7 Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003)\\n\\n 8 (“[W]hen Congress uses in a statute a term of art with a long history\\n\\n 9 of judicial interpretation, we must presume that Congress intends to\\n\\n10 use the word in its technical sense.”). Such purpose can, of course, be\\n\\n11 established in all the ways intent can be found in our law, including\\n\\n12 explicit attestation, concrete evidence, or, in some circumstances,\\n\\n13 inference from the foreseeable and logical consequences of a course\\n\\n14 of conduct.\\n\\n15 We have interpreted the same phrase in other statutes to\\n\\n16 describe a specific intent requirement. Section 2511(2)(d) of Title 18,\\n\\n17 for example, prohibits the interception of communications “for the\\n\\n18 purpose of committing any criminal or tortious act.” (emphasis added).\\n\\n\\n\\n 13\\n\\f 1 We held in Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010), “that a cause\\n\\n 2 of action under § 2511(2)(d) requires that the interceptor intend to\\n\\n 3 commit a crime or tort independent of the act of recording itself.” 618\\n\\n 4 F.3d at 100 (emphasis added); see also United States v. Tarantino, 617 F.\\n\\n 5 App’x 62, 65 (2d Cir. 2015) (summary order) (finding that § 2511(2)(d)\\n\\n 6 did not apply to defendant because it was not clear that a crime was\\n\\n 7 his “primary motivation” or the “determinative factor” in his\\n\\n 8 intercepting of communications).\\n\\n 9 Other circuits have also concluded that the FCRA includes a\\n\\n10 specific intent requirement in its definition of a “consumer reporting\\n\\n11 agency.” In Zabriskie v. Fed. Nat’l Mortg. Assoc., 912 F.3d 1192 (9th Cir.\\n\\n12 2019), for example, lenders providing mortgage refinancing used a\\n\\n13 Fannie Mae computer program called “Desktop Underwriter”—a\\n\\n14 platform used to determine a loan’s eligibility for purchase by Fannie\\n\\n15 Mae—to evaluate the plaintiffs’ loan application. 912 F.3d at 1195‐96.\\n\\n16 The program, however, incorrectly reported that the plaintiffs had\\n\\n17 been the subject of a recent foreclosure, and the lenders rejected the\\n\\n18 plaintiffs’ application as a result. Id. at 1196. The plaintiffs then sued\\n\\n\\n\\n 14\\n\\f 1 Fannie Mae under the FCRA. Id. Fannie Mae argued that it was not a\\n\\n 2 “consumer reporting agency,” and therefore not liable under the Act,\\n\\n 3 because it did not provide Desktop Underwriter for the purpose of\\n\\n 4 furnishing a consumer report about prospective borrowers to lenders,\\n\\n 5 but rather for the purpose of facilitating “a transaction between the\\n\\n 6 lender and Fannie Mae.” Id. at 1199 (internal quotation marks\\n\\n 7 omitted). The Ninth Circuit agreed, explaining that “‘[p]urpose’\\n\\n 8 means ‘something set up as an object or end to be attained’” and\\n\\n 9 accordingly, “[b]y its plain meaning, . . . the FCRA applies only to an\\n\\n10 entity that assembles or evaluates with the intent of providing a\\n\\n11 consumer report to third parties.” Id. (internal quotation marks and\\n\\n12 citation omitted).\\n\\n13 The Seventh Circuit has reached a similar conclusion. In Tierney\\n\\n14 v. Advocate Health & Hosps. Corp., 797 F.3d 449 (7th Cir. 2015), a\\n\\n15 number of computers containing unencrypted patient data were\\n\\n16 stolen from the defendant‐hospital’s administrative offices. 797 F.3d\\n\\n17 at 450. Several patients sued the defendant, claiming that the release\\n\\n18 of their records violated the FCRA, which requires that “consumer\\n\\n\\n\\n 15\\n\\f 1 reporting agencies” employ procedures to prevent disclosures of\\n\\n 2 consumer information to unauthorized third parties. Id. at 451. The\\n\\n 3 Seventh Circuit concluded, however, that the plaintiffs failed to state\\n\\n 4 a claim under the FCRA because the patients’ information was\\n\\n 5 collected to obtain payments from medical insurers and government\\n\\n 6 agencies and not assembled for the purpose of furnishing consumer\\n\\n 7 reports. Id. at 452. Therefore, the court explained, the defendant‐\\n\\n 8 hospital was not a “consumer reporting agency” under the Act. Id. at\\n\\n 9 453.\\n\\n10 Finally, our interpretation of the FCRA accords with 2010\\n\\n11 guidance provided by the Federal Trade Commission.8 In examples\\n\\n12 meant to illustrate the meaning of “for the purpose of furnishing\\n\\n13 consumer reports to third parties,” the FTC guidance indicates that\\n\\n14 an entity is not a “consumer reporting agency” unless it possesses the\\n\\n15 specific intent to provide a “consumer report.” See FED. TRADE\\n\\n\\n\\n\\n 8 The Consumer Protection Act of 2010 transferred authority from the FTC “to\\n prescribe rules” or “issue guidelines” regarding the FCRA to the Consumer\\n Financial Protection Bureau. 12 U.S.C. § 5581(b)(5)(A), (B)(i); 15 U.S.C. §\\n 1681s(e)(1). Nevertheless, the FTC retains authority to enforce the FCRA. 12 U.S.C.\\n § 5581(b)(5)(C)(i); 15 U.S.C. § 1681s(a)(1).\\n 16\\n\\f 1 COMM’N, 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT REPORTING\\n\\n 2 ACT, 2011 WL 3020575 at *23 (2011). Although the FTC’s guidance is\\n\\n 3 given no more than persuasive deference, see Skidmore v. Swift & Co.,\\n\\n 4 323 U.S. 134, 140 (1944), we find that it is helpful and, as it tracks the\\n\\n 5 language of the statute, persuasive.\\n\\n 6 In sum, “[t]he statute says what it says,” Cyan, Inc. v. Beaver\\n\\n 7 Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1069 (2018)—a “consumer\\n\\n 8 reporting agency” is an entity that assembles consumer information\\n\\n 9 “for the purpose of furnishing consumer reports to third parties.”\\n\\n10 B.\\n\\n11 Kidd’s arguments to the contrary are unavailing. Starting with\\n\\n12 the text, she argues that an entity qualifies as a “consumer reporting\\n\\n13 agency” if it “assembles consumer information in order to sell reports\\n\\n14 which satisfy the statutory definition of ‘consumer report,’” whether\\n\\n15 or not the entity actually intended to furnish a “consumer report.”\\n\\n16 Appellant’s Br. at 13. Kidd suggests section 1681a(f) imposes\\n\\n17 something akin to a general intent requirement—an entity need not\\n\\n18 specifically intend to furnish a “consumer report” to be a “consumer\\n\\n\\n\\n 17\\n\\f 1 reporting agency.” Rather, in Kidd’s view, the Act merely requires\\n\\n 2 that an entity intend to furnish a report (consumer or otherwise) that\\n\\n 3 ultimately constitutes a “consumer report.”\\n\\n 4 Kidd’s interpretation, however, finds no support in the text. As\\n\\n 5 explained above, the long‐standing meaning of “for the purpose of,”\\n\\n 6 which we presume Congress understood when it drafted the FCRA,\\n\\n 7 see Williams, 345 F.3d at 133, requires specific intent to provide a\\n\\n 8 statutorily‐defined “consumer report,” Bailey, 444 U.S. at 405. Most\\n\\n 9 naturally read, then, “for the purpose of furnishing consumer reports\\n\\n10 to third parties” means an entity must act with the specific intent to\\n\\n11 supply such a report.9\\n\\n12 Next, Kidd warns that if we adopt Thomson Reuters’\\n\\n13 interpretation we “would permit a company to purpose[ly] gather\\n\\n14 consumer information and intentionally sell person‐specific reports\\n\\n15 to third parties, which in all ways meet the statutory definition of\\n\\n\\n 9 Congress could have achieved the result suggested by Kidd by drafting section\\n 1681a(f) to read “for the purpose of furnishing reports that constitute ‘consumer\\n reports regardless of the intent for which the report was provided.’” But the statute does\\n not include this language, and we may not “add words to the law to produce what\\n is thought to be a desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.\\n Ct. 2028, 2033 (2015). Our interpretation must conform to the language of the\\n statute.\\n 18\\n\\f 1 ‘consumer report,’ yet avoid the reach of the FCRA by making a\\n\\n 2 strategic decision to include disclaimers in its contractual and\\n\\n 3 promotional language.” Appellant’s Br. at 14. However, an entity may\\n\\n 4 not escape regulation as a “consumer reporting agency” by merely\\n\\n 5 disclaiming an intent to furnish “consumer reports.” For the purposes\\n\\n 6 of the FCRA, indeed for any scienter determination, the totality of a\\n\\n 7 defendant’s actions is the determining factor, not the defendant’s\\n\\n 8 mere disclaimer of the requisite intent. Cf., Tellabs, Inc. v. Makor Issues\\n\\n 9 & Rights, Ltd., 551 U.S. 308, 322‐24 (2007) (holding, in the securities\\n\\n10 fraud context, that courts must consider the total mix of allegations\\n\\n11 when determining if the defendant had the requisite intent); Ricci v.\\n\\n12 DeStefano, 557 U.S. 557, 579‐80 (2d Cir. 2009) (considering the whole\\n\\n13 of the defendant’s conduct in determining discriminatory intent in the\\n\\n14 employment discrimination context). Indeed, the FTC has enforced\\n\\n15 the Act against an entity despite its disclaiming any designation as a\\n\\n16 “consumer reporting agency.” See Tony Rodriguez & Jessica Lyon,\\n\\n17 Background Screening Reports and the FCRA: Just Saying You’re Not a\\n\\n18 Consumer Reporting Agency Isn’t Enough, FTC BUSINESS BLOG (Jan. 10,\\n\\n\\n\\n 19\\n\\f 1 2013, 2:00 pm), https://www.ftc.gov/news‐events/blogs/business‐\\n\\n 2 blog/2013/01/background‐screening‐reports‐fcra‐just‐saying‐youre‐\\n\\n 3 not.\\n\\n 4 Finally, Kidd argues that our analysis renders part of the Act’s\\n\\n 5 definition of “consumer report”—specifically its focus on the use of\\n\\n 6 the report by the subscriber to make credit, insurance, and\\n\\n 7 employment decisions—irrelevant. Not so. Even if a court were to\\n\\n 8 conclude that an entity is a “consumer reporting agency” because it\\n\\n 9 specifically intended to furnish a “consumer report,” a court must still\\n\\n10 consider whether the report qualifies as such a “consumer report.”10\\n\\n11 In doing so, the court must give meaning to each of section 1681a(f)’s\\n\\n12 terms, including its focus on the conduct of the end‐user.\\n\\n13 Nor is § 1681a(f)’s focus on the intent of the entity furnishing\\n\\n14 consumer information indifferent to the purchaser’s use of the report.\\n\\n15 For example, if the issuer of such reports were aware of the substantial\\n\\n\\n\\n\\n 10No doubt, the definitions are connected, but not in a manner that supports\\n Kidd’s reading of the Act. 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT\\n REPORTING ACT, FTC, 2011 WL 3020575 at *13 (“The terms ‘consumer reporting\\n agency’ in section 603(f) and ‘consumer report’ in section 603(d) are mutually\\n dependent and must be construed together.”).\\n 20\\n\\f 1 use of the information it supplied as “consumer reports” and did not\\n\\n 2 take adequate measures to stop such use, or did not adequately\\n\\n 3 monitor the actual uses of its information, a fact finder could infer the\\n\\n 4 requisite intent to satisfy the definition of “consumer reporting\\n\\n 5 agency.”\\n\\n 6 Accordingly, we are not persuaded by Kidd’s proposed\\n\\n 7 interpretation of the FCRA’s definition of “consumer reporting\\n\\n 8 agency.”\\n\\n 9 II.\\n\\n10 Having concluded that to qualify as a “consumer reporting\\n\\n11 agency” an entity must intend to furnish a “consumer report” under\\n\\n12 the FCRA, we must now determine whether the district court was\\n\\n13 correct in concluding at summary judgment that Thomson Reuters\\n\\n14 did not intend that information provided by its CLEAR platform\\n\\n15 would constitute “consumer reports.” Like the district court, we\\n\\n16 conclude that because it is undisputed that Thomson Reuters took\\n\\n17 numerous—and effective—measures to prevent CLEAR reports from\\n\\n18 being utilized as “consumer reports,” no reasonable juror could\\n\\n\\n\\n 21\\n\\f 1 conclude that Thomson Reuters intended to furnish such reports, and\\n\\n 2 therefore it is not a “consumer reporting agency” under the FCRA.\\n\\n 3 A.\\n\\n 4 At each gateway to the CLEAR platform, Thomson Reuters\\n\\n 5 instructed users and potential subscribers that the platform was not\\n\\n 6 to be used for FCRA purposes and required them to affirm their\\n\\n 7 understanding of that restriction. Marketing material sent to\\n\\n 8 prospective subscribers explained that CLEAR is meant to be used for\\n\\n 9 law enforcement, fraud prevention, and identity verification (non‐\\n\\n10 FCRA) purposes only,11 and when potential subscribers apply for\\n\\n11 access to the platform, Thomson Reuters requires them to indicate\\n\\n12 how they intend to use CLEAR to ensure compliance with the\\n\\n13 company’s restrictions. When a Thomson Reuters employee suspects\\n\\n14 an applicant of misrepresenting its reasons, the applicant’s\\n\\n15 application will be reviewed again by a special Thomson Reuters\\n\\n\\n\\n 11 Kidd points to an advertisement in which Thomson Reuters suggested the\\n CLEAR platform may be used to “thoroughly investigate . . . employees.” App’x\\n at 350. At the bottom of the page, however, Thomson Reuters stated “[t]he data\\n provided to you by CLEAR may not be used as a factor in establishing a\\n consumer’s eligibility for credit, insurance, employment purposes or for any other\\n purpose authorized under the FCRA.” Id.\\n 22\\n\\f 1 committee established for that purpose. If a customer is granted\\n\\n 2 access to the platform, she is required to sign a contract promising to\\n\\n 3 not use CLEAR in a manner prohibited by Thomson Reuters.\\n\\n 4 Thomson Reuters also periodically requires its CLEAR subscribers to\\n\\n 5 reaffirm that commitment, and each time a user enters a search she\\n\\n 6 must affirm her reason for using CLEAR complies with Thomson\\n\\n 7 Reuters’ requirements.\\n\\n 8 In the event these controls fail, Thomson Reuters also employs\\n\\n 9 additional measures to prevent further misuse of the CLEAR\\n\\n10 platform. If its compliance office determines a user has used CLEAR\\n\\n11 for an FCRA purpose it will “remind[] the subscriber that FCRA use\\n\\n12 of CLEAR is prohibited and requires the subscriber to provide a\\n\\n13 written ‘attestation’ of its authorized uses of CLEAR and its intent to\\n\\n14 enforce the subscriber’s contractual obligation not to use CLEAR for\\n\\n15 any FCRA purpose.” App’x at 146.\\n\\n16 These numerous, undisputed controls are sufficient to establish\\n\\n17 at summary judgment that Thomson Reuters aimed to prevent users\\n\\n18 from putting CLEAR reports to uses covered by the FCRA. This\\n\\n\\n\\n 23\\n\\f 1 negates any inferences that Thomson Reuters intended to provide\\n\\n 2 reports for FCRA purposes. Hence, the reports it provided do not\\n\\n 3 qualify as “consumer reports.”\\n\\n 4 B.\\n\\n 5 Kidd does not dispute any of the foregoing facts. Instead, she\\n\\n 6 argues that we can infer Thomson Reuters’ intent to furnish\\n\\n 7 “consumer reports” because it was aware that its controls did not\\n\\n 8 prevent all misuse of CLEAR by its subscribers.\\n\\n 9 To be sure, the record shows that Thomson Reuters was aware\\n\\n10 of some instances of misuse of its CLEAR platform. But, it is\\n\\n11 undisputed that the number of reports misused by subscribers was\\n\\n12 miniscule in comparison to the number of reports generated. No\\n\\n13 doubt in some cases such knowledge may at least raise a genuine\\n\\n14 dispute as to whether the entity furnishing the consumer information\\n\\n15 intended to furnish “consumer reports.” That is not the case here,\\n\\n16 however. Thomson Reuters’ extensive efforts to prevent misuse, and\\n\\n17 to investigate and eliminate it when it occurs, shows that even in the\\n\\n\\n\\n\\n 24\\n\\f 1 few instances where CLEAR was misused for FCRA purposes,\\n\\n 2 Thomson Reuters did not intend that result.12\\n\\n 3 We agree with the district court that the undisputed summary\\n\\n 4 judgment record shows that Thomson Reuters did not intend its\\n\\n 5 CLEAR platform to furnish “consumer reports.” We conclude,\\n\\n 6 therefore, that the district court was correct in deciding that Thomson\\n\\n 7 Reuters does not qualify as a “consumer reporting agency” under the\\n\\n 8 FCRA and in granting summary judgment on that basis.\\n\\n 9 Conclusion\\n\\n10 For the foregoing reasons, we AFFIRM the district court’s\\n\\n11 judgment in favor of Thomson Reuters.\\n\\n\\n12\\n\\n13\\n\\n\\n\\n\\n 12\\n Kidd also argues that those most likely to abuse the CLEAR platform are not\\n required to certify, during the application process, that they will use the platform\\n for only non‐FCRA purposes. But Kidd ignores a key part of Thomson Reuters’\\n protection measures. Each subscriber must certify, each time they attempt to\\n search CLEAR, that their purpose is not covered by the FCRA. Thus, every\\n CLEAR user is warned that using the search platform for FCRA purposes\\n is prohibited.\\n\\n\\n 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4401812/\", \"author_raw\": \"DRONEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CALABRESI"},"judge2":{"kind":"string","value":"DRONEY"},"judge3":{"kind":"string","value":"UNDERHILL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624559/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Lindsey A. KIDD, Plaintiff-Appellant, v. THOMSON REUTERS CORPORATION, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3550\n Kidd v. Thomson Reuters Corp.\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4\n 5\n 6 August Term, 2018\n 7 No. 17‐3550\n 8\n 9 LINDSEY A. KIDD,\n10 Plaintiff‐Appellant,\n11\n12 v.\n13\n14 THOMSON REUTERS CORPORATION,\n15 Defendant‐Appellee.\n16\n17\n18\n19 Appeal from the United States District Court\n20 for the Southern District of New York.\n21 No. 16‐1668 — Jesse M. Furman, Judge.\n22\n23 ARGUED: FEBRUARY 4, 2019\n24 DECIDED: MAY 30, 2019\n25\n26\n27 Before: CALABRESI, DRONEY, Circuit Judges, and UNDERHILL, Chief\n28 District Judge.*\n\n29\n30\n\n\n\n *Judge Stefan R. Underhill, of the United States District Court for the\n District of Connecticut, sitting by designation.\n\f 1 Appeal from a judgment of the United States District Court for\n 2 the Southern District of New York following the grant of Defendant‐\n 3 Appellee Thomson Reuters’ motion for summary judgment. We hold\n 4 that the district court was correct in concluding that Thomson Reuters\n 5 is not a “consumer reporting agency,” 15 U.S.C. § 1681a(f), and\n 6 therefore is not subject to the Federal Consumer Reporting Act.\n 7 Accordingly, we AFFIRM the district court’s judgment.\n 8\n 9\n10 JAMES A. FRANCIS, Francis &\n11 Mailman, Philadelphia, PA, for\n12 Appellant.\n13\n14 KEVIN KING (Eric C. Bosset & Neil K.\n15 Roman, on the brief), Covington &\n16 Burling, Washington, D.C., for\n17 Appellee.\n18\n19 DRONEY, Circuit Judge:\n\n20 Plaintiff‐Appellant Lindsey A. Kidd was the subject of a\n\n21 background check as part of an employment application process with\n\n22 the state of Georgia Department of Health (“Department”). The\n\n23 background check was performed using Defendant‐Appellee\n\n24 Thomson Reuters’ subscription‐based internet platform, “CLEAR.”\n\n25 The CLEAR report obtained by the Department falsely showed that\n\n26 Kidd had been previously convicted of theft. Believing the report to\n\n27 be correct, the Department rejected Kidd’s application. Kidd then\n\n\n\n 2\n\f 1 filed this action in the Southern District of New York, alleging that\n\n 2 Thomson Reuters is a “consumer reporting agency” subject to the Fair\n\n 3 Credit Reporting Act and that it violated that act by providing the\n\n 4 false report. After the conclusion of discovery, the district court\n\n 5 (Furman, J.) granted Thomson Reuters’ motion for summary\n\n 6 judgment, concluding that because Thomson Reuters is not a\n\n 7 “consumer reporting agency,” it is not subject to the Act. For the\n\n 8 reasons that follow, we AFFIRM the district court’s judgment in favor\n\n 9 of Thomson Reuters.\n\n10 I.\n11\n12 The Fair Credit Reporting Act (“FCRA”) regulates, among\n\n13 other things, the circumstances in which a “consumer reporting\n\n14 agency” may furnish “consumer reports” to third parties, and the\n\n15 information contained in those reports. 15 U.S.C. §§ 1681b, 1681c.\n\n16 Typically, consumer reporting agencies sell consumer reports to\n\n17 lenders, credit card companies, insurers, and employers for credit,\n\n18 insurance, and employment decisions. CONSUMER FINANCIAL\n\n19 PROTECTION BUREAU, LIST OF CONSUMER REPORTING COMPANIES, 3\n\n\n\n 3\n\f 1 (2019), https://www.consumerfinance.gov/consumer‐tools/credit‐\n\n 2 reports‐and‐scores/consumer‐reporting‐companies/companies‐list/\n\n 3 (last visited Apr. 23, 2019). Examples of government‐designated\n\n 4 consumer reporting agencies are Equifax, Transunion, and Experian.\n\n 5 Id. at 8. If a “consumer reporting agency” fails to comply with the\n\n 6 Act, it may be subject to civil liability to consumers, which includes\n\n 7 actual and punitive damages. 15 U.S.C. §§ 1681n, 1681o. This appeal\n\n 8 turns on whether Thomson Reuters qualifies as a “consumer\n\n 9 reporting agency” under the Act.\n\n10 A.1\n\n11 Thomson Reuters operates an online research platform named\n\n12 “Consolidated Lead Evaluation and Reporting,” or “CLEAR,” that\n\n13 provides its subscribers summary reports of motor vehicle records,\n\n14 court records, aliases, the status of professional licenses, real property\n\n15 transactions, and similar information.2 CLEAR subscribers are\n\n\n 1 The following facts are undisputed and taken from the parties’ summary\n judgment submissions.\n\n 2 Although Thomson Reuters maintains that it is not subject to the FCRA, it\n acknowledges that it is regulated by the Gramm‐Leach‐Bliley Act, 15 U.S.C. § 6801\n et seq., the Drivers’ Privacy Protection Act, 18 U.S.C. § 2721 et seq., and state voter‐\n identification laws. These statutes are not relevant to the parties’ dispute, however.\n 4\n\f 1 principally government agencies and law enforcement entities, but\n\n 2 also include financial institutions, corporate security offices, and\n\n 3 insurance claims departments. The platform receives approximately\n\n 4 100,000 search queries each day and is designed to help combat fraud\n\n 5 and assist public agencies in criminal investigations.\n\n 6 Thomson Reuters prohibits its subscribers from utilizing\n\n 7 CLEAR for any purpose covered by the FCRA, such as credit inquiries\n\n 8 or background checks related to employment, and has established\n\n 9 measures to prevent those uses of its reports. For example, the\n\n10 company markets CLEAR for law enforcement, fraud prevention, or\n\n11 identity verification purposes only. Employees tasked with\n\n12 marketing CLEAR to potential subscribers are trained that CLEAR\n\n13 “may not be promoted or used for FCRA‐regulated purposes.” App’x\n\n14 at 141.\n\n15 Thomson Reuters also screens potential subscribers before\n\n16 granting them access to CLEAR. They are required to indicate how\n\n17 they intend to use the platform on an “Account Validation and\n\n18 Credentialing” form, which Thomson Reuters employees then review\n\n\n\n 5\n\f 1 to confirm that the use of CLEAR is not for an FCRA purpose. If an\n\n 2 employee suspects an applicant intends to use the platform for an\n\n 3 improper purpose, the applicant will be flagged for review by a\n\n 4 “Credentialing Committee” that may reject the applicant or require\n\n 5 the applicant to affirm she will not improperly use CLEAR. Once\n\n 6 approved, the customer enters into a contract with Thomson Reuters\n\n 7 in which she specifically represents that she will not use CLEAR for a\n\n 8 purpose covered by the FCRA. Thomson Reuters “offers\n\n 9 complimentary training to new CLEAR subscribers” to ensure\n\n10 compliance. App’x at 145. Every two years, Thomson Reuters requires\n\n11 subscribers to reaffirm their commitment to using CLEAR for a non‐\n\n12 FCRA purpose, and before a subscriber may enter an individual\n\n13 search request, she must verify that her search is for an approved\n\n14 purpose.\n\n15 Thomson Reuters also investigates reports of CLEAR misuse\n\n16 through its in‐house compliance office. If the office determines misuse\n\n17 has occurred it will “remind[] the subscriber that FCRA use of CLEAR\n\n18 is prohibited and require[] the subscriber to provide a written\n\n\n\n 6\n\f 1 ‘attestation’ of its authorized uses of CLEAR and its intent to enforce\n\n 2 the subscriber’s contractual obligation not to use CLEAR for any\n\n 3 FCRA purpose.” App’x at 146. It is undisputed that reports of misuse\n\n 4 are rare. Of the 144 million CLEAR searches conducted between 2012\n\n 5 and 2016, only 46 were alleged to be for an FCRA purpose.3 Thomson\n\n 6 Reuters determined that 12 of the 46 reports did not involve misuse,\n\n 7 required the users responsible for 24 of the searches to reaffirm their\n\n 8 promise to perform non‐FCRA searches, and terminated the accounts\n\n 9 of the subscribers responsible for the remaining 10 improper searches.\n\n10 B.\n\n11 This case involves one of those 46 reports of misuse. In\n\n12 November 2014, Plaintiff‐Appellant Lindsey Kidd was the leading\n\n13 candidate for a position as an “Immunization Program Consultant”\n\n14 with the Georgia Department of Public Health, a CLEAR subscriber.\n\n15 The Department received Kidd’s authorization to obtain a\n\n16 background check during the application process. Using the CLEAR\n\n17 platform, the Department discovered that Kidd had a prior state\n\n\n\n\n 3 This reflects only reported misuses of the platform.\n 7\n\f 1 conviction for theft. Although the Department regarded Kidd as the\n\n 2 “top candidate” for the position, the report led the Department not to\n\n 3 hire her. But Kidd had not been convicted of theft; the CLEAR report\n\n 4 contained false information. Kidd was not able to correct the mistake\n\n 5 in the report in time to obtain the position.\n\n 6 Kidd subsequently filed a putative class action complaint in the\n\n 7 Southern District of New York against Thomson Reuters in March\n\n 8 2016, alleging that operating the CLEAR platform renders Thomson\n\n 9 Reuters a “consumer reporting agency” under the FCRA and that the\n\n10 company violated several provisions of the Act in providing false\n\n11 information to the Georgia agency.\n\n12 After the conclusion of discovery, the district court granted\n\n13 summary judgment in favor of Thomson Reuters. Starting with the\n\n14 text of the FCRA, the district court determined that an entity is a\n\n15 “consumer reporting agency” under the Act if it “regularly assembles\n\n16 consumer information with a particular purpose or subjective\n\n17 intention—namely, of providing it to third parties for use (actual or\n\n18 expected) in connection with an FCRA‐regulated end, such as\n\n\n\n 8\n\f 1 employment eligibility.” Kidd v. Thomson Reuters Corp., 299 F. Supp.\n\n 2 3d 400, 404 (S.D.N.Y. 2017). “That is because,” the court explained,\n\n 3 “an entity qualifies as a [consumer reporting agency] only if it\n\n 4 ‘regularly’ assembles information on consumers ‘for the purpose of\n\n 5 furnishing consumer reports to third parties,’ and ‘purpose’ means\n\n 6 ‘[t]he reason for which something is done or created or for which\n\n 7 something exists’ or to ‘[h]ave as one’s intention or objective.’” Id.\n\n 8 (quoting Purpose, OXFORD ENGLISH ONLINE DICTIONARY,\n\n 9 https://en.oxforddictionaries.com/definition/purpose).\n\n10 Applying that definition to Thomson Reuters, the district court\n\n11 determined that the company does not qualify as a “consumer\n\n12 reporting agency” because Thomson Reuters did not intend to furnish\n\n13 “consumer reports” through the CLEAR platform. The court\n\n14 explained that Thomson Reuters took “affirmative steps . . . at every\n\n15 stage of the customer acquisition, application, contracting, and\n\n16 support processes to ensure that subscribers are not using CLEAR for\n\n17 FCRA‐regulated purposes,” thereby establishing that it did not\n\n\n\n\n 9\n\f 1 intend to furnish reports for FCRA purposes. Thus, its reports would\n\n 2 not constitute “consumer reports.” Id. at 407.\n\n 3 Kidd timely appealed from the district court’s judgment.\n\n 4 II.\n\n 5 We review a “district court’s grant of a motion for summary\n\n 6 judgment de novo, construing the evidence in the light most favorable\n\n 7 to the non‐moving party.” Irby v. N.Y.C. Transit Auth., 262 F.3d 412,\n\n 8 413 (2d Cir. 2001) (internal quotation marks omitted).\n\n 9 Kidd’s appeal presents a question of first impression for us:\n\n10 Whether, to qualify as a “consumer reporting agency” under the\n\n11 FCRA, an entity must specifically intend to furnish a “consumer\n\n12 report.” For the reasons that follow, we conclude that it must have\n\n13 such an intent, and we affirm the district court’s order granting\n\n14 summary judgment in favor of Thomson Reuters.\n\n15 A.\n\n16 To answer questions of statutory interpretation, we “begin with\n\n17 the text.” Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 741 (2017).\n\n18 Under the Act, a “consumer reporting agency” is:\n\n\n\n 10\n\f 1 any person4 which, for monetary fees, dues, or on a\n 2 cooperative nonprofit basis, regularly engages in whole\n 3 or in part in the practice of assembling or evaluating\n 4 consumer credit information or other information on\n 5 consumers for the purpose of furnishing consumer reports\n 6 to third parties, and which uses any means or facility of\n 7 interstate commerce for the purpose of preparing or\n 8 furnishing consumer reports.\n 9\n10 15 U.S.C. § 1681a(f) (emphasis added). The Act defines a “consumer\n\n11 report” as:\n\n12 any written, oral, or other communication of any\n13 information by a consumer reporting agency bearing on\n14 a consumer’s credit worthiness, credit standing, credit\n15 capacity, character, general reputation, personal\n16 characteristics, or mode of living which is used or\n17 expected to be used or collected in whole or in part for\n18 the purpose of serving as a factor in establishing the\n19 consumer’s eligibility for—(A) credit or insurance to be\n20 used primarily for personal, family or household\n21 purposes; (B) employment purposes; or (C) any other\n22 purpose authorized under section 1681b of this title.\n23\n24 15 U.S.C. § 1681a(d)(1).5 Thus, the principal uses of “consumer\n\n25 reports” are for determining eligibility of consumers for extensions of\n\n26 credit, providing insurance, or reviewing employment applications.\n\n\n 4Under the Act, “person” includes individuals and corporate entities. 15 U.S.C. §\n 1681a(b).\n\n 5 Section 1681b enumerates the permissible purposes to which a “consumer\n report” may be put under the FCRA. Those purposes include credit inquiries and\n employment purposes. See 15 U.S.C. § 1681b.\n 11\n\f 1 The ordinary meaning of “‘purpose’ corresponds loosely with\n\n 2 the common‐law concept of specific intent.”6 United States v. Bailey,\n\n 3 444 U.S. 394, 405 (1980); cf. United States v. Technodyne LLC, 753 F.3d\n\n 4 368, 383 (2d Cir. 2014) (finding, in the civil context, that the phrase “in\n\n 5 order to” constitutes a specific intent requirement). Specific intent\n\n 6 may be found where a person acts with “[t]he intent to accomplish\n\n 7 the precise . . . act.” Specific Intent, BLACK’S LAW DICTIONARY (10th ed.\n\n 8 2014).7 Thus, “a person who causes a particular result is said to act\n\n 9 purpose[ly] if ‘he consciously desires that result, whatever the\n\n10 likelihood of that result happening from his conduct.’” Bailey, 444 U.S.\n\n11 at 404 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 445\n\n12 (1978)). This understanding comports with the common dictionary\n\n13 definition of “purpose” as “something set up as an object or end to be\n\n\n\n\n 6\n “When a term goes undefined in a statute, we give the term\n its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).\n\n\n 7“Corporate intent is shown by the actions and statements of the officers, directors,\n and employees who are in positions of authority or have apparent authority to\n make policy for the corporation.” District Lodge 26, Intern. Ass’n of Machinists &\n Aerospace Workers, AFL‐CIO v. United Techs. Corp., 610 F.3d 44, 53 (2d Cir. 2010)\n (quoting United States v. Basic Constr. Co., 711 F.2d 570, 573 (4th Cir. 1983)\n (alteration omitted)).\n 12\n\f 1 attained.” Purpose, MERRIAM‐WEBSTER ONLINE DICTIONARY,\n\n 2 https://www.merriam‐webster.com/dictionary/purpose (last visited\n\n 3 March 21, 2019).\n\n 4 The meaning of “for the purpose of” in § 1681a(f) is therefore\n\n 5 plain: A “consumer reporting agency” is an entity that intends the\n\n 6 information it furnishes to constitute a “consumer report.” See\n\n 7 Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003)\n\n 8 (“[W]hen Congress uses in a statute a term of art with a long history\n\n 9 of judicial interpretation, we must presume that Congress intends to\n\n10 use the word in its technical sense.”). Such purpose can, of course, be\n\n11 established in all the ways intent can be found in our law, including\n\n12 explicit attestation, concrete evidence, or, in some circumstances,\n\n13 inference from the foreseeable and logical consequences of a course\n\n14 of conduct.\n\n15 We have interpreted the same phrase in other statutes to\n\n16 describe a specific intent requirement. Section 2511(2)(d) of Title 18,\n\n17 for example, prohibits the interception of communications “for the\n\n18 purpose of committing any criminal or tortious act.” (emphasis added).\n\n\n\n 13\n\f 1 We held in Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010), “that a cause\n\n 2 of action under § 2511(2)(d) requires that the interceptor intend to\n\n 3 commit a crime or tort independent of the act of recording itself.” 618\n\n 4 F.3d at 100 (emphasis added); see also United States v. Tarantino, 617 F.\n\n 5 App’x 62, 65 (2d Cir. 2015) (summary order) (finding that § 2511(2)(d)\n\n 6 did not apply to defendant because it was not clear that a crime was\n\n 7 his “primary motivation” or the “determinative factor” in his\n\n 8 intercepting of communications).\n\n 9 Other circuits have also concluded that the FCRA includes a\n\n10 specific intent requirement in its definition of a “consumer reporting\n\n11 agency.” In Zabriskie v. Fed. Nat’l Mortg. Assoc., 912 F.3d 1192 (9th Cir.\n\n12 2019), for example, lenders providing mortgage refinancing used a\n\n13 Fannie Mae computer program called “Desktop Underwriter”—a\n\n14 platform used to determine a loan’s eligibility for purchase by Fannie\n\n15 Mae—to evaluate the plaintiffs’ loan application. 912 F.3d at 1195‐96.\n\n16 The program, however, incorrectly reported that the plaintiffs had\n\n17 been the subject of a recent foreclosure, and the lenders rejected the\n\n18 plaintiffs’ application as a result. Id. at 1196. The plaintiffs then sued\n\n\n\n 14\n\f 1 Fannie Mae under the FCRA. Id. Fannie Mae argued that it was not a\n\n 2 “consumer reporting agency,” and therefore not liable under the Act,\n\n 3 because it did not provide Desktop Underwriter for the purpose of\n\n 4 furnishing a consumer report about prospective borrowers to lenders,\n\n 5 but rather for the purpose of facilitating “a transaction between the\n\n 6 lender and Fannie Mae.” Id. at 1199 (internal quotation marks\n\n 7 omitted). The Ninth Circuit agreed, explaining that “‘[p]urpose’\n\n 8 means ‘something set up as an object or end to be attained’” and\n\n 9 accordingly, “[b]y its plain meaning, . . . the FCRA applies only to an\n\n10 entity that assembles or evaluates with the intent of providing a\n\n11 consumer report to third parties.” Id. (internal quotation marks and\n\n12 citation omitted).\n\n13 The Seventh Circuit has reached a similar conclusion. In Tierney\n\n14 v. Advocate Health & Hosps. Corp., 797 F.3d 449 (7th Cir. 2015), a\n\n15 number of computers containing unencrypted patient data were\n\n16 stolen from the defendant‐hospital’s administrative offices. 797 F.3d\n\n17 at 450. Several patients sued the defendant, claiming that the release\n\n18 of their records violated the FCRA, which requires that “consumer\n\n\n\n 15\n\f 1 reporting agencies” employ procedures to prevent disclosures of\n\n 2 consumer information to unauthorized third parties. Id. at 451. The\n\n 3 Seventh Circuit concluded, however, that the plaintiffs failed to state\n\n 4 a claim under the FCRA because the patients’ information was\n\n 5 collected to obtain payments from medical insurers and government\n\n 6 agencies and not assembled for the purpose of furnishing consumer\n\n 7 reports. Id. at 452. Therefore, the court explained, the defendant‐\n\n 8 hospital was not a “consumer reporting agency” under the Act. Id. at\n\n 9 453.\n\n10 Finally, our interpretation of the FCRA accords with 2010\n\n11 guidance provided by the Federal Trade Commission.8 In examples\n\n12 meant to illustrate the meaning of “for the purpose of furnishing\n\n13 consumer reports to third parties,” the FTC guidance indicates that\n\n14 an entity is not a “consumer reporting agency” unless it possesses the\n\n15 specific intent to provide a “consumer report.” See FED. TRADE\n\n\n\n\n 8 The Consumer Protection Act of 2010 transferred authority from the FTC “to\n prescribe rules” or “issue guidelines” regarding the FCRA to the Consumer\n Financial Protection Bureau. 12 U.S.C. § 5581(b)(5)(A), (B)(i); 15 U.S.C. §\n 1681s(e)(1). Nevertheless, the FTC retains authority to enforce the FCRA. 12 U.S.C.\n § 5581(b)(5)(C)(i); 15 U.S.C. § 1681s(a)(1).\n 16\n\f 1 COMM’N, 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT REPORTING\n\n 2 ACT, 2011 WL 3020575 at *23 (2011). Although the FTC’s guidance is\n\n 3 given no more than persuasive deference, see Skidmore v. Swift & Co.,\n\n 4 323 U.S. 134, 140 (1944), we find that it is helpful and, as it tracks the\n\n 5 language of the statute, persuasive.\n\n 6 In sum, “[t]he statute says what it says,” Cyan, Inc. v. Beaver\n\n 7 Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1069 (2018)—a “consumer\n\n 8 reporting agency” is an entity that assembles consumer information\n\n 9 “for the purpose of furnishing consumer reports to third parties.”\n\n10 B.\n\n11 Kidd’s arguments to the contrary are unavailing. Starting with\n\n12 the text, she argues that an entity qualifies as a “consumer reporting\n\n13 agency” if it “assembles consumer information in order to sell reports\n\n14 which satisfy the statutory definition of ‘consumer report,’” whether\n\n15 or not the entity actually intended to furnish a “consumer report.”\n\n16 Appellant’s Br. at 13. Kidd suggests section 1681a(f) imposes\n\n17 something akin to a general intent requirement—an entity need not\n\n18 specifically intend to furnish a “consumer report” to be a “consumer\n\n\n\n 17\n\f 1 reporting agency.” Rather, in Kidd’s view, the Act merely requires\n\n 2 that an entity intend to furnish a report (consumer or otherwise) that\n\n 3 ultimately constitutes a “consumer report.”\n\n 4 Kidd’s interpretation, however, finds no support in the text. As\n\n 5 explained above, the long‐standing meaning of “for the purpose of,”\n\n 6 which we presume Congress understood when it drafted the FCRA,\n\n 7 see Williams, 345 F.3d at 133, requires specific intent to provide a\n\n 8 statutorily‐defined “consumer report,” Bailey, 444 U.S. at 405. Most\n\n 9 naturally read, then, “for the purpose of furnishing consumer reports\n\n10 to third parties” means an entity must act with the specific intent to\n\n11 supply such a report.9\n\n12 Next, Kidd warns that if we adopt Thomson Reuters’\n\n13 interpretation we “would permit a company to purpose[ly] gather\n\n14 consumer information and intentionally sell person‐specific reports\n\n15 to third parties, which in all ways meet the statutory definition of\n\n\n 9 Congress could have achieved the result suggested by Kidd by drafting section\n 1681a(f) to read “for the purpose of furnishing reports that constitute ‘consumer\n reports regardless of the intent for which the report was provided.’” But the statute does\n not include this language, and we may not “add words to the law to produce what\n is thought to be a desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.\n Ct. 2028, 2033 (2015). Our interpretation must conform to the language of the\n statute.\n 18\n\f 1 ‘consumer report,’ yet avoid the reach of the FCRA by making a\n\n 2 strategic decision to include disclaimers in its contractual and\n\n 3 promotional language.” Appellant’s Br. at 14. However, an entity may\n\n 4 not escape regulation as a “consumer reporting agency” by merely\n\n 5 disclaiming an intent to furnish “consumer reports.” For the purposes\n\n 6 of the FCRA, indeed for any scienter determination, the totality of a\n\n 7 defendant’s actions is the determining factor, not the defendant’s\n\n 8 mere disclaimer of the requisite intent. Cf., Tellabs, Inc. v. Makor Issues\n\n 9 & Rights, Ltd., 551 U.S. 308, 322‐24 (2007) (holding, in the securities\n\n10 fraud context, that courts must consider the total mix of allegations\n\n11 when determining if the defendant had the requisite intent); Ricci v.\n\n12 DeStefano, 557 U.S. 557, 579‐80 (2d Cir. 2009) (considering the whole\n\n13 of the defendant’s conduct in determining discriminatory intent in the\n\n14 employment discrimination context). Indeed, the FTC has enforced\n\n15 the Act against an entity despite its disclaiming any designation as a\n\n16 “consumer reporting agency.” See Tony Rodriguez & Jessica Lyon,\n\n17 Background Screening Reports and the FCRA: Just Saying You’re Not a\n\n18 Consumer Reporting Agency Isn’t Enough, FTC BUSINESS BLOG (Jan. 10,\n\n\n\n 19\n\f 1 2013, 2:00 pm), https://www.ftc.gov/news‐events/blogs/business‐\n\n 2 blog/2013/01/background‐screening‐reports‐fcra‐just‐saying‐youre‐\n\n 3 not.\n\n 4 Finally, Kidd argues that our analysis renders part of the Act’s\n\n 5 definition of “consumer report”—specifically its focus on the use of\n\n 6 the report by the subscriber to make credit, insurance, and\n\n 7 employment decisions—irrelevant. Not so. Even if a court were to\n\n 8 conclude that an entity is a “consumer reporting agency” because it\n\n 9 specifically intended to furnish a “consumer report,” a court must still\n\n10 consider whether the report qualifies as such a “consumer report.”10\n\n11 In doing so, the court must give meaning to each of section 1681a(f)’s\n\n12 terms, including its focus on the conduct of the end‐user.\n\n13 Nor is § 1681a(f)’s focus on the intent of the entity furnishing\n\n14 consumer information indifferent to the purchaser’s use of the report.\n\n15 For example, if the issuer of such reports were aware of the substantial\n\n\n\n\n 10No doubt, the definitions are connected, but not in a manner that supports\n Kidd’s reading of the Act. 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT\n REPORTING ACT, FTC, 2011 WL 3020575 at *13 (“The terms ‘consumer reporting\n agency’ in section 603(f) and ‘consumer report’ in section 603(d) are mutually\n dependent and must be construed together.”).\n 20\n\f 1 use of the information it supplied as “consumer reports” and did not\n\n 2 take adequate measures to stop such use, or did not adequately\n\n 3 monitor the actual uses of its information, a fact finder could infer the\n\n 4 requisite intent to satisfy the definition of “consumer reporting\n\n 5 agency.”\n\n 6 Accordingly, we are not persuaded by Kidd’s proposed\n\n 7 interpretation of the FCRA’s definition of “consumer reporting\n\n 8 agency.”\n\n 9 II.\n\n10 Having concluded that to qualify as a “consumer reporting\n\n11 agency” an entity must intend to furnish a “consumer report” under\n\n12 the FCRA, we must now determine whether the district court was\n\n13 correct in concluding at summary judgment that Thomson Reuters\n\n14 did not intend that information provided by its CLEAR platform\n\n15 would constitute “consumer reports.” Like the district court, we\n\n16 conclude that because it is undisputed that Thomson Reuters took\n\n17 numerous—and effective—measures to prevent CLEAR reports from\n\n18 being utilized as “consumer reports,” no reasonable juror could\n\n\n\n 21\n\f 1 conclude that Thomson Reuters intended to furnish such reports, and\n\n 2 therefore it is not a “consumer reporting agency” under the FCRA.\n\n 3 A.\n\n 4 At each gateway to the CLEAR platform, Thomson Reuters\n\n 5 instructed users and potential subscribers that the platform was not\n\n 6 to be used for FCRA purposes and required them to affirm their\n\n 7 understanding of that restriction. Marketing material sent to\n\n 8 prospective subscribers explained that CLEAR is meant to be used for\n\n 9 law enforcement, fraud prevention, and identity verification (non‐\n\n10 FCRA) purposes only,11 and when potential subscribers apply for\n\n11 access to the platform, Thomson Reuters requires them to indicate\n\n12 how they intend to use CLEAR to ensure compliance with the\n\n13 company’s restrictions. When a Thomson Reuters employee suspects\n\n14 an applicant of misrepresenting its reasons, the applicant’s\n\n15 application will be reviewed again by a special Thomson Reuters\n\n\n\n 11 Kidd points to an advertisement in which Thomson Reuters suggested the\n CLEAR platform may be used to “thoroughly investigate . . . employees.” App’x\n at 350. At the bottom of the page, however, Thomson Reuters stated “[t]he data\n provided to you by CLEAR may not be used as a factor in establishing a\n consumer’s eligibility for credit, insurance, employment purposes or for any other\n purpose authorized under the FCRA.” Id.\n 22\n\f 1 committee established for that purpose. If a customer is granted\n\n 2 access to the platform, she is required to sign a contract promising to\n\n 3 not use CLEAR in a manner prohibited by Thomson Reuters.\n\n 4 Thomson Reuters also periodically requires its CLEAR subscribers to\n\n 5 reaffirm that commitment, and each time a user enters a search she\n\n 6 must affirm her reason for using CLEAR complies with Thomson\n\n 7 Reuters’ requirements.\n\n 8 In the event these controls fail, Thomson Reuters also employs\n\n 9 additional measures to prevent further misuse of the CLEAR\n\n10 platform. If its compliance office determines a user has used CLEAR\n\n11 for an FCRA purpose it will “remind[] the subscriber that FCRA use\n\n12 of CLEAR is prohibited and requires the subscriber to provide a\n\n13 written ‘attestation’ of its authorized uses of CLEAR and its intent to\n\n14 enforce the subscriber’s contractual obligation not to use CLEAR for\n\n15 any FCRA purpose.” App’x at 146.\n\n16 These numerous, undisputed controls are sufficient to establish\n\n17 at summary judgment that Thomson Reuters aimed to prevent users\n\n18 from putting CLEAR reports to uses covered by the FCRA. This\n\n\n\n 23\n\f 1 negates any inferences that Thomson Reuters intended to provide\n\n 2 reports for FCRA purposes. Hence, the reports it provided do not\n\n 3 qualify as “consumer reports.”\n\n 4 B.\n\n 5 Kidd does not dispute any of the foregoing facts. Instead, she\n\n 6 argues that we can infer Thomson Reuters’ intent to furnish\n\n 7 “consumer reports” because it was aware that its controls did not\n\n 8 prevent all misuse of CLEAR by its subscribers.\n\n 9 To be sure, the record shows that Thomson Reuters was aware\n\n10 of some instances of misuse of its CLEAR platform. But, it is\n\n11 undisputed that the number of reports misused by subscribers was\n\n12 miniscule in comparison to the number of reports generated. No\n\n13 doubt in some cases such knowledge may at least raise a genuine\n\n14 dispute as to whether the entity furnishing the consumer information\n\n15 intended to furnish “consumer reports.” That is not the case here,\n\n16 however. Thomson Reuters’ extensive efforts to prevent misuse, and\n\n17 to investigate and eliminate it when it occurs, shows that even in the\n\n\n\n\n 24\n\f 1 few instances where CLEAR was misused for FCRA purposes,\n\n 2 Thomson Reuters did not intend that result.12\n\n 3 We agree with the district court that the undisputed summary\n\n 4 judgment record shows that Thomson Reuters did not intend its\n\n 5 CLEAR platform to furnish “consumer reports.” We conclude,\n\n 6 therefore, that the district court was correct in deciding that Thomson\n\n 7 Reuters does not qualify as a “consumer reporting agency” under the\n\n 8 FCRA and in granting summary judgment on that basis.\n\n 9 Conclusion\n\n10 For the foregoing reasons, we AFFIRM the district court’s\n\n11 judgment in favor of Thomson Reuters.\n\n\n12\n\n13\n\n\n\n\n 12\n Kidd also argues that those most likely to abuse the CLEAR platform are not\n required to certify, during the application process, that they will use the platform\n for only non‐FCRA purposes. But Kidd ignores a key part of Thomson Reuters’\n protection measures. Each subscriber must certify, each time they attempt to\n search CLEAR, that their purpose is not covered by the FCRA. Thus, every\n CLEAR user is warned that using the search platform for FCRA purposes\n is prohibited.\n\n\n 25\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Lindsey A. KIDD, Plaintiff-Appellant, v. THOMSON REUTERS CORPORATION, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3550\\n Kidd v. Thomson Reuters Corp.\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term, 2018\\n 7 No. 17‐3550\\n 8\\n 9 LINDSEY A. KIDD,\\n10 Plaintiff‐Appellant,\\n11\\n12 v.\\n13\\n14 THOMSON REUTERS CORPORATION,\\n15 Defendant‐Appellee.\\n16\\n17\\n18\\n19 Appeal from the United States District Court\\n20 for the Southern District of New York.\\n21 No. 16‐1668 — Jesse M. Furman, Judge.\\n22\\n23 ARGUED: FEBRUARY 4, 2019\\n24 DECIDED: MAY 30, 2019\\n25\\n26\\n27 Before: CALABRESI, DRONEY, Circuit Judges, and UNDERHILL, Chief\\n28 District Judge.*\\n\\n29\\n30\\n\\n\\n\\n *Judge Stefan R. Underhill, of the United States District Court for the\\n District of Connecticut, sitting by designation.\\n\\f 1 Appeal from a judgment of the United States District Court for\\n 2 the Southern District of New York following the grant of Defendant‐\\n 3 Appellee Thomson Reuters’ motion for summary judgment. We hold\\n 4 that the district court was correct in concluding that Thomson Reuters\\n 5 is not a “consumer reporting agency,” 15 U.S.C. § 1681a(f), and\\n 6 therefore is not subject to the Federal Consumer Reporting Act.\\n 7 Accordingly, we AFFIRM the district court’s judgment.\\n 8\\n 9\\n10 JAMES A. FRANCIS, Francis &\\n11 Mailman, Philadelphia, PA, for\\n12 Appellant.\\n13\\n14 KEVIN KING (Eric C. Bosset & Neil K.\\n15 Roman, on the brief), Covington &\\n16 Burling, Washington, D.C., for\\n17 Appellee.\\n18\\n19 DRONEY, Circuit Judge:\\n\\n20 Plaintiff‐Appellant Lindsey A. Kidd was the subject of a\\n\\n21 background check as part of an employment application process with\\n\\n22 the state of Georgia Department of Health (“Department”). The\\n\\n23 background check was performed using Defendant‐Appellee\\n\\n24 Thomson Reuters’ subscription‐based internet platform, “CLEAR.”\\n\\n25 The CLEAR report obtained by the Department falsely showed that\\n\\n26 Kidd had been previously convicted of theft. Believing the report to\\n\\n27 be correct, the Department rejected Kidd’s application. Kidd then\\n\\n\\n\\n 2\\n\\f 1 filed this action in the Southern District of New York, alleging that\\n\\n 2 Thomson Reuters is a “consumer reporting agency” subject to the Fair\\n\\n 3 Credit Reporting Act and that it violated that act by providing the\\n\\n 4 false report. After the conclusion of discovery, the district court\\n\\n 5 (Furman, J.) granted Thomson Reuters’ motion for summary\\n\\n 6 judgment, concluding that because Thomson Reuters is not a\\n\\n 7 “consumer reporting agency,” it is not subject to the Act. For the\\n\\n 8 reasons that follow, we AFFIRM the district court’s judgment in favor\\n\\n 9 of Thomson Reuters.\\n\\n10 I.\\n11\\n12 The Fair Credit Reporting Act (“FCRA”) regulates, among\\n\\n13 other things, the circumstances in which a “consumer reporting\\n\\n14 agency” may furnish “consumer reports” to third parties, and the\\n\\n15 information contained in those reports. 15 U.S.C. §§ 1681b, 1681c.\\n\\n16 Typically, consumer reporting agencies sell consumer reports to\\n\\n17 lenders, credit card companies, insurers, and employers for credit,\\n\\n18 insurance, and employment decisions. CONSUMER FINANCIAL\\n\\n19 PROTECTION BUREAU, LIST OF CONSUMER REPORTING COMPANIES, 3\\n\\n\\n\\n 3\\n\\f 1 (2019), https://www.consumerfinance.gov/consumer‐tools/credit‐\\n\\n 2 reports‐and‐scores/consumer‐reporting‐companies/companies‐list/\\n\\n 3 (last visited Apr. 23, 2019). Examples of government‐designated\\n\\n 4 consumer reporting agencies are Equifax, Transunion, and Experian.\\n\\n 5 Id. at 8. If a “consumer reporting agency” fails to comply with the\\n\\n 6 Act, it may be subject to civil liability to consumers, which includes\\n\\n 7 actual and punitive damages. 15 U.S.C. §§ 1681n, 1681o. This appeal\\n\\n 8 turns on whether Thomson Reuters qualifies as a “consumer\\n\\n 9 reporting agency” under the Act.\\n\\n10 A.1\\n\\n11 Thomson Reuters operates an online research platform named\\n\\n12 “Consolidated Lead Evaluation and Reporting,” or “CLEAR,” that\\n\\n13 provides its subscribers summary reports of motor vehicle records,\\n\\n14 court records, aliases, the status of professional licenses, real property\\n\\n15 transactions, and similar information.2 CLEAR subscribers are\\n\\n\\n 1 The following facts are undisputed and taken from the parties’ summary\\n judgment submissions.\\n\\n 2 Although Thomson Reuters maintains that it is not subject to the FCRA, it\\n acknowledges that it is regulated by the Gramm‐Leach‐Bliley Act, 15 U.S.C. § 6801\\n et seq., the Drivers’ Privacy Protection Act, 18 U.S.C. § 2721 et seq., and state voter‐\\n identification laws. These statutes are not relevant to the parties’ dispute, however.\\n 4\\n\\f 1 principally government agencies and law enforcement entities, but\\n\\n 2 also include financial institutions, corporate security offices, and\\n\\n 3 insurance claims departments. The platform receives approximately\\n\\n 4 100,000 search queries each day and is designed to help combat fraud\\n\\n 5 and assist public agencies in criminal investigations.\\n\\n 6 Thomson Reuters prohibits its subscribers from utilizing\\n\\n 7 CLEAR for any purpose covered by the FCRA, such as credit inquiries\\n\\n 8 or background checks related to employment, and has established\\n\\n 9 measures to prevent those uses of its reports. For example, the\\n\\n10 company markets CLEAR for law enforcement, fraud prevention, or\\n\\n11 identity verification purposes only. Employees tasked with\\n\\n12 marketing CLEAR to potential subscribers are trained that CLEAR\\n\\n13 “may not be promoted or used for FCRA‐regulated purposes.” App’x\\n\\n14 at 141.\\n\\n15 Thomson Reuters also screens potential subscribers before\\n\\n16 granting them access to CLEAR. They are required to indicate how\\n\\n17 they intend to use the platform on an “Account Validation and\\n\\n18 Credentialing” form, which Thomson Reuters employees then review\\n\\n\\n\\n 5\\n\\f 1 to confirm that the use of CLEAR is not for an FCRA purpose. If an\\n\\n 2 employee suspects an applicant intends to use the platform for an\\n\\n 3 improper purpose, the applicant will be flagged for review by a\\n\\n 4 “Credentialing Committee” that may reject the applicant or require\\n\\n 5 the applicant to affirm she will not improperly use CLEAR. Once\\n\\n 6 approved, the customer enters into a contract with Thomson Reuters\\n\\n 7 in which she specifically represents that she will not use CLEAR for a\\n\\n 8 purpose covered by the FCRA. Thomson Reuters “offers\\n\\n 9 complimentary training to new CLEAR subscribers” to ensure\\n\\n10 compliance. App’x at 145. Every two years, Thomson Reuters requires\\n\\n11 subscribers to reaffirm their commitment to using CLEAR for a non‐\\n\\n12 FCRA purpose, and before a subscriber may enter an individual\\n\\n13 search request, she must verify that her search is for an approved\\n\\n14 purpose.\\n\\n15 Thomson Reuters also investigates reports of CLEAR misuse\\n\\n16 through its in‐house compliance office. If the office determines misuse\\n\\n17 has occurred it will “remind[] the subscriber that FCRA use of CLEAR\\n\\n18 is prohibited and require[] the subscriber to provide a written\\n\\n\\n\\n 6\\n\\f 1 ‘attestation’ of its authorized uses of CLEAR and its intent to enforce\\n\\n 2 the subscriber’s contractual obligation not to use CLEAR for any\\n\\n 3 FCRA purpose.” App’x at 146. It is undisputed that reports of misuse\\n\\n 4 are rare. Of the 144 million CLEAR searches conducted between 2012\\n\\n 5 and 2016, only 46 were alleged to be for an FCRA purpose.3 Thomson\\n\\n 6 Reuters determined that 12 of the 46 reports did not involve misuse,\\n\\n 7 required the users responsible for 24 of the searches to reaffirm their\\n\\n 8 promise to perform non‐FCRA searches, and terminated the accounts\\n\\n 9 of the subscribers responsible for the remaining 10 improper searches.\\n\\n10 B.\\n\\n11 This case involves one of those 46 reports of misuse. In\\n\\n12 November 2014, Plaintiff‐Appellant Lindsey Kidd was the leading\\n\\n13 candidate for a position as an “Immunization Program Consultant”\\n\\n14 with the Georgia Department of Public Health, a CLEAR subscriber.\\n\\n15 The Department received Kidd’s authorization to obtain a\\n\\n16 background check during the application process. Using the CLEAR\\n\\n17 platform, the Department discovered that Kidd had a prior state\\n\\n\\n\\n\\n 3 This reflects only reported misuses of the platform.\\n 7\\n\\f 1 conviction for theft. Although the Department regarded Kidd as the\\n\\n 2 “top candidate” for the position, the report led the Department not to\\n\\n 3 hire her. But Kidd had not been convicted of theft; the CLEAR report\\n\\n 4 contained false information. Kidd was not able to correct the mistake\\n\\n 5 in the report in time to obtain the position.\\n\\n 6 Kidd subsequently filed a putative class action complaint in the\\n\\n 7 Southern District of New York against Thomson Reuters in March\\n\\n 8 2016, alleging that operating the CLEAR platform renders Thomson\\n\\n 9 Reuters a “consumer reporting agency” under the FCRA and that the\\n\\n10 company violated several provisions of the Act in providing false\\n\\n11 information to the Georgia agency.\\n\\n12 After the conclusion of discovery, the district court granted\\n\\n13 summary judgment in favor of Thomson Reuters. Starting with the\\n\\n14 text of the FCRA, the district court determined that an entity is a\\n\\n15 “consumer reporting agency” under the Act if it “regularly assembles\\n\\n16 consumer information with a particular purpose or subjective\\n\\n17 intention—namely, of providing it to third parties for use (actual or\\n\\n18 expected) in connection with an FCRA‐regulated end, such as\\n\\n\\n\\n 8\\n\\f 1 employment eligibility.” Kidd v. Thomson Reuters Corp., 299 F. Supp.\\n\\n 2 3d 400, 404 (S.D.N.Y. 2017). “That is because,” the court explained,\\n\\n 3 “an entity qualifies as a [consumer reporting agency] only if it\\n\\n 4 ‘regularly’ assembles information on consumers ‘for the purpose of\\n\\n 5 furnishing consumer reports to third parties,’ and ‘purpose’ means\\n\\n 6 ‘[t]he reason for which something is done or created or for which\\n\\n 7 something exists’ or to ‘[h]ave as one’s intention or objective.’” Id.\\n\\n 8 (quoting Purpose, OXFORD ENGLISH ONLINE DICTIONARY,\\n\\n 9 https://en.oxforddictionaries.com/definition/purpose).\\n\\n10 Applying that definition to Thomson Reuters, the district court\\n\\n11 determined that the company does not qualify as a “consumer\\n\\n12 reporting agency” because Thomson Reuters did not intend to furnish\\n\\n13 “consumer reports” through the CLEAR platform. The court\\n\\n14 explained that Thomson Reuters took “affirmative steps . . . at every\\n\\n15 stage of the customer acquisition, application, contracting, and\\n\\n16 support processes to ensure that subscribers are not using CLEAR for\\n\\n17 FCRA‐regulated purposes,” thereby establishing that it did not\\n\\n\\n\\n\\n 9\\n\\f 1 intend to furnish reports for FCRA purposes. Thus, its reports would\\n\\n 2 not constitute “consumer reports.” Id. at 407.\\n\\n 3 Kidd timely appealed from the district court’s judgment.\\n\\n 4 II.\\n\\n 5 We review a “district court’s grant of a motion for summary\\n\\n 6 judgment de novo, construing the evidence in the light most favorable\\n\\n 7 to the non‐moving party.” Irby v. N.Y.C. Transit Auth., 262 F.3d 412,\\n\\n 8 413 (2d Cir. 2001) (internal quotation marks omitted).\\n\\n 9 Kidd’s appeal presents a question of first impression for us:\\n\\n10 Whether, to qualify as a “consumer reporting agency” under the\\n\\n11 FCRA, an entity must specifically intend to furnish a “consumer\\n\\n12 report.” For the reasons that follow, we conclude that it must have\\n\\n13 such an intent, and we affirm the district court’s order granting\\n\\n14 summary judgment in favor of Thomson Reuters.\\n\\n15 A.\\n\\n16 To answer questions of statutory interpretation, we “begin with\\n\\n17 the text.” Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 741 (2017).\\n\\n18 Under the Act, a “consumer reporting agency” is:\\n\\n\\n\\n 10\\n\\f 1 any person4 which, for monetary fees, dues, or on a\\n 2 cooperative nonprofit basis, regularly engages in whole\\n 3 or in part in the practice of assembling or evaluating\\n 4 consumer credit information or other information on\\n 5 consumers for the purpose of furnishing consumer reports\\n 6 to third parties, and which uses any means or facility of\\n 7 interstate commerce for the purpose of preparing or\\n 8 furnishing consumer reports.\\n 9\\n10 15 U.S.C. § 1681a(f) (emphasis added). The Act defines a “consumer\\n\\n11 report” as:\\n\\n12 any written, oral, or other communication of any\\n13 information by a consumer reporting agency bearing on\\n14 a consumer’s credit worthiness, credit standing, credit\\n15 capacity, character, general reputation, personal\\n16 characteristics, or mode of living which is used or\\n17 expected to be used or collected in whole or in part for\\n18 the purpose of serving as a factor in establishing the\\n19 consumer’s eligibility for—(A) credit or insurance to be\\n20 used primarily for personal, family or household\\n21 purposes; (B) employment purposes; or (C) any other\\n22 purpose authorized under section 1681b of this title.\\n23\\n24 15 U.S.C. § 1681a(d)(1).5 Thus, the principal uses of “consumer\\n\\n25 reports” are for determining eligibility of consumers for extensions of\\n\\n26 credit, providing insurance, or reviewing employment applications.\\n\\n\\n 4Under the Act, “person” includes individuals and corporate entities. 15 U.S.C. §\\n 1681a(b).\\n\\n 5 Section 1681b enumerates the permissible purposes to which a “consumer\\n report” may be put under the FCRA. Those purposes include credit inquiries and\\n employment purposes. See 15 U.S.C. § 1681b.\\n 11\\n\\f 1 The ordinary meaning of “‘purpose’ corresponds loosely with\\n\\n 2 the common‐law concept of specific intent.”6 United States v. Bailey,\\n\\n 3 444 U.S. 394, 405 (1980); cf. United States v. Technodyne LLC, 753 F.3d\\n\\n 4 368, 383 (2d Cir. 2014) (finding, in the civil context, that the phrase “in\\n\\n 5 order to” constitutes a specific intent requirement). Specific intent\\n\\n 6 may be found where a person acts with “[t]he intent to accomplish\\n\\n 7 the precise . . . act.” Specific Intent, BLACK’S LAW DICTIONARY (10th ed.\\n\\n 8 2014).7 Thus, “a person who causes a particular result is said to act\\n\\n 9 purpose[ly] if ‘he consciously desires that result, whatever the\\n\\n10 likelihood of that result happening from his conduct.’” Bailey, 444 U.S.\\n\\n11 at 404 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 445\\n\\n12 (1978)). This understanding comports with the common dictionary\\n\\n13 definition of “purpose” as “something set up as an object or end to be\\n\\n\\n\\n\\n 6\\n “When a term goes undefined in a statute, we give the term\\n its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).\\n\\n\\n 7“Corporate intent is shown by the actions and statements of the officers, directors,\\n and employees who are in positions of authority or have apparent authority to\\n make policy for the corporation.” District Lodge 26, Intern. Ass’n of Machinists &\\n Aerospace Workers, AFL‐CIO v. United Techs. Corp., 610 F.3d 44, 53 (2d Cir. 2010)\\n (quoting United States v. Basic Constr. Co., 711 F.2d 570, 573 (4th Cir. 1983)\\n (alteration omitted)).\\n 12\\n\\f 1 attained.” Purpose, MERRIAM‐WEBSTER ONLINE DICTIONARY,\\n\\n 2 https://www.merriam‐webster.com/dictionary/purpose (last visited\\n\\n 3 March 21, 2019).\\n\\n 4 The meaning of “for the purpose of” in § 1681a(f) is therefore\\n\\n 5 plain: A “consumer reporting agency” is an entity that intends the\\n\\n 6 information it furnishes to constitute a “consumer report.” See\\n\\n 7 Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003)\\n\\n 8 (“[W]hen Congress uses in a statute a term of art with a long history\\n\\n 9 of judicial interpretation, we must presume that Congress intends to\\n\\n10 use the word in its technical sense.”). Such purpose can, of course, be\\n\\n11 established in all the ways intent can be found in our law, including\\n\\n12 explicit attestation, concrete evidence, or, in some circumstances,\\n\\n13 inference from the foreseeable and logical consequences of a course\\n\\n14 of conduct.\\n\\n15 We have interpreted the same phrase in other statutes to\\n\\n16 describe a specific intent requirement. Section 2511(2)(d) of Title 18,\\n\\n17 for example, prohibits the interception of communications “for the\\n\\n18 purpose of committing any criminal or tortious act.” (emphasis added).\\n\\n\\n\\n 13\\n\\f 1 We held in Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010), “that a cause\\n\\n 2 of action under § 2511(2)(d) requires that the interceptor intend to\\n\\n 3 commit a crime or tort independent of the act of recording itself.” 618\\n\\n 4 F.3d at 100 (emphasis added); see also United States v. Tarantino, 617 F.\\n\\n 5 App’x 62, 65 (2d Cir. 2015) (summary order) (finding that § 2511(2)(d)\\n\\n 6 did not apply to defendant because it was not clear that a crime was\\n\\n 7 his “primary motivation” or the “determinative factor” in his\\n\\n 8 intercepting of communications).\\n\\n 9 Other circuits have also concluded that the FCRA includes a\\n\\n10 specific intent requirement in its definition of a “consumer reporting\\n\\n11 agency.” In Zabriskie v. Fed. Nat’l Mortg. Assoc., 912 F.3d 1192 (9th Cir.\\n\\n12 2019), for example, lenders providing mortgage refinancing used a\\n\\n13 Fannie Mae computer program called “Desktop Underwriter”—a\\n\\n14 platform used to determine a loan’s eligibility for purchase by Fannie\\n\\n15 Mae—to evaluate the plaintiffs’ loan application. 912 F.3d at 1195‐96.\\n\\n16 The program, however, incorrectly reported that the plaintiffs had\\n\\n17 been the subject of a recent foreclosure, and the lenders rejected the\\n\\n18 plaintiffs’ application as a result. Id. at 1196. The plaintiffs then sued\\n\\n\\n\\n 14\\n\\f 1 Fannie Mae under the FCRA. Id. Fannie Mae argued that it was not a\\n\\n 2 “consumer reporting agency,” and therefore not liable under the Act,\\n\\n 3 because it did not provide Desktop Underwriter for the purpose of\\n\\n 4 furnishing a consumer report about prospective borrowers to lenders,\\n\\n 5 but rather for the purpose of facilitating “a transaction between the\\n\\n 6 lender and Fannie Mae.” Id. at 1199 (internal quotation marks\\n\\n 7 omitted). The Ninth Circuit agreed, explaining that “‘[p]urpose’\\n\\n 8 means ‘something set up as an object or end to be attained’” and\\n\\n 9 accordingly, “[b]y its plain meaning, . . . the FCRA applies only to an\\n\\n10 entity that assembles or evaluates with the intent of providing a\\n\\n11 consumer report to third parties.” Id. (internal quotation marks and\\n\\n12 citation omitted).\\n\\n13 The Seventh Circuit has reached a similar conclusion. In Tierney\\n\\n14 v. Advocate Health & Hosps. Corp., 797 F.3d 449 (7th Cir. 2015), a\\n\\n15 number of computers containing unencrypted patient data were\\n\\n16 stolen from the defendant‐hospital’s administrative offices. 797 F.3d\\n\\n17 at 450. Several patients sued the defendant, claiming that the release\\n\\n18 of their records violated the FCRA, which requires that “consumer\\n\\n\\n\\n 15\\n\\f 1 reporting agencies” employ procedures to prevent disclosures of\\n\\n 2 consumer information to unauthorized third parties. Id. at 451. The\\n\\n 3 Seventh Circuit concluded, however, that the plaintiffs failed to state\\n\\n 4 a claim under the FCRA because the patients’ information was\\n\\n 5 collected to obtain payments from medical insurers and government\\n\\n 6 agencies and not assembled for the purpose of furnishing consumer\\n\\n 7 reports. Id. at 452. Therefore, the court explained, the defendant‐\\n\\n 8 hospital was not a “consumer reporting agency” under the Act. Id. at\\n\\n 9 453.\\n\\n10 Finally, our interpretation of the FCRA accords with 2010\\n\\n11 guidance provided by the Federal Trade Commission.8 In examples\\n\\n12 meant to illustrate the meaning of “for the purpose of furnishing\\n\\n13 consumer reports to third parties,” the FTC guidance indicates that\\n\\n14 an entity is not a “consumer reporting agency” unless it possesses the\\n\\n15 specific intent to provide a “consumer report.” See FED. TRADE\\n\\n\\n\\n\\n 8 The Consumer Protection Act of 2010 transferred authority from the FTC “to\\n prescribe rules” or “issue guidelines” regarding the FCRA to the Consumer\\n Financial Protection Bureau. 12 U.S.C. § 5581(b)(5)(A), (B)(i); 15 U.S.C. §\\n 1681s(e)(1). Nevertheless, the FTC retains authority to enforce the FCRA. 12 U.S.C.\\n § 5581(b)(5)(C)(i); 15 U.S.C. § 1681s(a)(1).\\n 16\\n\\f 1 COMM’N, 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT REPORTING\\n\\n 2 ACT, 2011 WL 3020575 at *23 (2011). Although the FTC’s guidance is\\n\\n 3 given no more than persuasive deference, see Skidmore v. Swift & Co.,\\n\\n 4 323 U.S. 134, 140 (1944), we find that it is helpful and, as it tracks the\\n\\n 5 language of the statute, persuasive.\\n\\n 6 In sum, “[t]he statute says what it says,” Cyan, Inc. v. Beaver\\n\\n 7 Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1069 (2018)—a “consumer\\n\\n 8 reporting agency” is an entity that assembles consumer information\\n\\n 9 “for the purpose of furnishing consumer reports to third parties.”\\n\\n10 B.\\n\\n11 Kidd’s arguments to the contrary are unavailing. Starting with\\n\\n12 the text, she argues that an entity qualifies as a “consumer reporting\\n\\n13 agency” if it “assembles consumer information in order to sell reports\\n\\n14 which satisfy the statutory definition of ‘consumer report,’” whether\\n\\n15 or not the entity actually intended to furnish a “consumer report.”\\n\\n16 Appellant’s Br. at 13. Kidd suggests section 1681a(f) imposes\\n\\n17 something akin to a general intent requirement—an entity need not\\n\\n18 specifically intend to furnish a “consumer report” to be a “consumer\\n\\n\\n\\n 17\\n\\f 1 reporting agency.” Rather, in Kidd’s view, the Act merely requires\\n\\n 2 that an entity intend to furnish a report (consumer or otherwise) that\\n\\n 3 ultimately constitutes a “consumer report.”\\n\\n 4 Kidd’s interpretation, however, finds no support in the text. As\\n\\n 5 explained above, the long‐standing meaning of “for the purpose of,”\\n\\n 6 which we presume Congress understood when it drafted the FCRA,\\n\\n 7 see Williams, 345 F.3d at 133, requires specific intent to provide a\\n\\n 8 statutorily‐defined “consumer report,” Bailey, 444 U.S. at 405. Most\\n\\n 9 naturally read, then, “for the purpose of furnishing consumer reports\\n\\n10 to third parties” means an entity must act with the specific intent to\\n\\n11 supply such a report.9\\n\\n12 Next, Kidd warns that if we adopt Thomson Reuters’\\n\\n13 interpretation we “would permit a company to purpose[ly] gather\\n\\n14 consumer information and intentionally sell person‐specific reports\\n\\n15 to third parties, which in all ways meet the statutory definition of\\n\\n\\n 9 Congress could have achieved the result suggested by Kidd by drafting section\\n 1681a(f) to read “for the purpose of furnishing reports that constitute ‘consumer\\n reports regardless of the intent for which the report was provided.’” But the statute does\\n not include this language, and we may not “add words to the law to produce what\\n is thought to be a desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.\\n Ct. 2028, 2033 (2015). Our interpretation must conform to the language of the\\n statute.\\n 18\\n\\f 1 ‘consumer report,’ yet avoid the reach of the FCRA by making a\\n\\n 2 strategic decision to include disclaimers in its contractual and\\n\\n 3 promotional language.” Appellant’s Br. at 14. However, an entity may\\n\\n 4 not escape regulation as a “consumer reporting agency” by merely\\n\\n 5 disclaiming an intent to furnish “consumer reports.” For the purposes\\n\\n 6 of the FCRA, indeed for any scienter determination, the totality of a\\n\\n 7 defendant’s actions is the determining factor, not the defendant’s\\n\\n 8 mere disclaimer of the requisite intent. Cf., Tellabs, Inc. v. Makor Issues\\n\\n 9 & Rights, Ltd., 551 U.S. 308, 322‐24 (2007) (holding, in the securities\\n\\n10 fraud context, that courts must consider the total mix of allegations\\n\\n11 when determining if the defendant had the requisite intent); Ricci v.\\n\\n12 DeStefano, 557 U.S. 557, 579‐80 (2d Cir. 2009) (considering the whole\\n\\n13 of the defendant’s conduct in determining discriminatory intent in the\\n\\n14 employment discrimination context). Indeed, the FTC has enforced\\n\\n15 the Act against an entity despite its disclaiming any designation as a\\n\\n16 “consumer reporting agency.” See Tony Rodriguez & Jessica Lyon,\\n\\n17 Background Screening Reports and the FCRA: Just Saying You’re Not a\\n\\n18 Consumer Reporting Agency Isn’t Enough, FTC BUSINESS BLOG (Jan. 10,\\n\\n\\n\\n 19\\n\\f 1 2013, 2:00 pm), https://www.ftc.gov/news‐events/blogs/business‐\\n\\n 2 blog/2013/01/background‐screening‐reports‐fcra‐just‐saying‐youre‐\\n\\n 3 not.\\n\\n 4 Finally, Kidd argues that our analysis renders part of the Act’s\\n\\n 5 definition of “consumer report”—specifically its focus on the use of\\n\\n 6 the report by the subscriber to make credit, insurance, and\\n\\n 7 employment decisions—irrelevant. Not so. Even if a court were to\\n\\n 8 conclude that an entity is a “consumer reporting agency” because it\\n\\n 9 specifically intended to furnish a “consumer report,” a court must still\\n\\n10 consider whether the report qualifies as such a “consumer report.”10\\n\\n11 In doing so, the court must give meaning to each of section 1681a(f)’s\\n\\n12 terms, including its focus on the conduct of the end‐user.\\n\\n13 Nor is § 1681a(f)’s focus on the intent of the entity furnishing\\n\\n14 consumer information indifferent to the purchaser’s use of the report.\\n\\n15 For example, if the issuer of such reports were aware of the substantial\\n\\n\\n\\n\\n 10No doubt, the definitions are connected, but not in a manner that supports\\n Kidd’s reading of the Act. 40 YEARS OF EXPERIENCE WITH THE FAIR CREDIT\\n REPORTING ACT, FTC, 2011 WL 3020575 at *13 (“The terms ‘consumer reporting\\n agency’ in section 603(f) and ‘consumer report’ in section 603(d) are mutually\\n dependent and must be construed together.”).\\n 20\\n\\f 1 use of the information it supplied as “consumer reports” and did not\\n\\n 2 take adequate measures to stop such use, or did not adequately\\n\\n 3 monitor the actual uses of its information, a fact finder could infer the\\n\\n 4 requisite intent to satisfy the definition of “consumer reporting\\n\\n 5 agency.”\\n\\n 6 Accordingly, we are not persuaded by Kidd’s proposed\\n\\n 7 interpretation of the FCRA’s definition of “consumer reporting\\n\\n 8 agency.”\\n\\n 9 II.\\n\\n10 Having concluded that to qualify as a “consumer reporting\\n\\n11 agency” an entity must intend to furnish a “consumer report” under\\n\\n12 the FCRA, we must now determine whether the district court was\\n\\n13 correct in concluding at summary judgment that Thomson Reuters\\n\\n14 did not intend that information provided by its CLEAR platform\\n\\n15 would constitute “consumer reports.” Like the district court, we\\n\\n16 conclude that because it is undisputed that Thomson Reuters took\\n\\n17 numerous—and effective—measures to prevent CLEAR reports from\\n\\n18 being utilized as “consumer reports,” no reasonable juror could\\n\\n\\n\\n 21\\n\\f 1 conclude that Thomson Reuters intended to furnish such reports, and\\n\\n 2 therefore it is not a “consumer reporting agency” under the FCRA.\\n\\n 3 A.\\n\\n 4 At each gateway to the CLEAR platform, Thomson Reuters\\n\\n 5 instructed users and potential subscribers that the platform was not\\n\\n 6 to be used for FCRA purposes and required them to affirm their\\n\\n 7 understanding of that restriction. Marketing material sent to\\n\\n 8 prospective subscribers explained that CLEAR is meant to be used for\\n\\n 9 law enforcement, fraud prevention, and identity verification (non‐\\n\\n10 FCRA) purposes only,11 and when potential subscribers apply for\\n\\n11 access to the platform, Thomson Reuters requires them to indicate\\n\\n12 how they intend to use CLEAR to ensure compliance with the\\n\\n13 company’s restrictions. When a Thomson Reuters employee suspects\\n\\n14 an applicant of misrepresenting its reasons, the applicant’s\\n\\n15 application will be reviewed again by a special Thomson Reuters\\n\\n\\n\\n 11 Kidd points to an advertisement in which Thomson Reuters suggested the\\n CLEAR platform may be used to “thoroughly investigate . . . employees.” App’x\\n at 350. At the bottom of the page, however, Thomson Reuters stated “[t]he data\\n provided to you by CLEAR may not be used as a factor in establishing a\\n consumer’s eligibility for credit, insurance, employment purposes or for any other\\n purpose authorized under the FCRA.” Id.\\n 22\\n\\f 1 committee established for that purpose. If a customer is granted\\n\\n 2 access to the platform, she is required to sign a contract promising to\\n\\n 3 not use CLEAR in a manner prohibited by Thomson Reuters.\\n\\n 4 Thomson Reuters also periodically requires its CLEAR subscribers to\\n\\n 5 reaffirm that commitment, and each time a user enters a search she\\n\\n 6 must affirm her reason for using CLEAR complies with Thomson\\n\\n 7 Reuters’ requirements.\\n\\n 8 In the event these controls fail, Thomson Reuters also employs\\n\\n 9 additional measures to prevent further misuse of the CLEAR\\n\\n10 platform. If its compliance office determines a user has used CLEAR\\n\\n11 for an FCRA purpose it will “remind[] the subscriber that FCRA use\\n\\n12 of CLEAR is prohibited and requires the subscriber to provide a\\n\\n13 written ‘attestation’ of its authorized uses of CLEAR and its intent to\\n\\n14 enforce the subscriber’s contractual obligation not to use CLEAR for\\n\\n15 any FCRA purpose.” App’x at 146.\\n\\n16 These numerous, undisputed controls are sufficient to establish\\n\\n17 at summary judgment that Thomson Reuters aimed to prevent users\\n\\n18 from putting CLEAR reports to uses covered by the FCRA. This\\n\\n\\n\\n 23\\n\\f 1 negates any inferences that Thomson Reuters intended to provide\\n\\n 2 reports for FCRA purposes. Hence, the reports it provided do not\\n\\n 3 qualify as “consumer reports.”\\n\\n 4 B.\\n\\n 5 Kidd does not dispute any of the foregoing facts. Instead, she\\n\\n 6 argues that we can infer Thomson Reuters’ intent to furnish\\n\\n 7 “consumer reports” because it was aware that its controls did not\\n\\n 8 prevent all misuse of CLEAR by its subscribers.\\n\\n 9 To be sure, the record shows that Thomson Reuters was aware\\n\\n10 of some instances of misuse of its CLEAR platform. But, it is\\n\\n11 undisputed that the number of reports misused by subscribers was\\n\\n12 miniscule in comparison to the number of reports generated. No\\n\\n13 doubt in some cases such knowledge may at least raise a genuine\\n\\n14 dispute as to whether the entity furnishing the consumer information\\n\\n15 intended to furnish “consumer reports.” That is not the case here,\\n\\n16 however. Thomson Reuters’ extensive efforts to prevent misuse, and\\n\\n17 to investigate and eliminate it when it occurs, shows that even in the\\n\\n\\n\\n\\n 24\\n\\f 1 few instances where CLEAR was misused for FCRA purposes,\\n\\n 2 Thomson Reuters did not intend that result.12\\n\\n 3 We agree with the district court that the undisputed summary\\n\\n 4 judgment record shows that Thomson Reuters did not intend its\\n\\n 5 CLEAR platform to furnish “consumer reports.” We conclude,\\n\\n 6 therefore, that the district court was correct in deciding that Thomson\\n\\n 7 Reuters does not qualify as a “consumer reporting agency” under the\\n\\n 8 FCRA and in granting summary judgment on that basis.\\n\\n 9 Conclusion\\n\\n10 For the foregoing reasons, we AFFIRM the district court’s\\n\\n11 judgment in favor of Thomson Reuters.\\n\\n\\n12\\n\\n13\\n\\n\\n\\n\\n 12\\n Kidd also argues that those most likely to abuse the CLEAR platform are not\\n required to certify, during the application process, that they will use the platform\\n for only non‐FCRA purposes. But Kidd ignores a key part of Thomson Reuters’\\n protection measures. Each subscriber must certify, each time they attempt to\\n search CLEAR, that their purpose is not covered by the FCRA. Thus, every\\n CLEAR user is warned that using the search platform for FCRA purposes\\n is prohibited.\\n\\n\\n 25\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1996,"cells":{"id":{"kind":"number","value":4624846,"string":"4,624,846"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Washington v. Barr"},"decision_date":{"kind":"string","value":"2019-05-30"},"docket_number":{"kind":"string","value":"18-859-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GUIDO CALABRESI, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"18-859-cv\\nWashington et al. v. Barr et al.\\n\\n\\n\\n 1\\n 18‐859‐cv\\n Washington et al. v. Barr et al.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2018\\n\\n (Argued: December 12, 2018 Decided: May 30, 2019)\\n\\n Docket No. 18‐859‐cv\\n\\n\\n\\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\\n\\n Plaintiffs‐Appellants,\\n\\n – v. –\\n\\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\\n his official capacity as the Acting Administrator of the Drug Enforcement\\n Administration, UNITED STATES DRUG ENFORCEMENT\\n ADMINISTRATION, and UNITED STATES OF AMERICA,\\n Defendants‐Appellees,1\\n\\n\\n\\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\\n\\n\\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\\n above.\\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\\n\\n New York, sitting by designation.\\n\\n 2\\n Appeal from the judgment of the United States District Court for the\\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\\net seq. But Plaintiffs did not first pursue reclassification through the\\nadministrative process defined in the Act. Accordingly, their action is\\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\\nto exhaust their administrative remedies, we should not hear their suit at this\\ntime. In view of the unusual circumstances of this case, however, we retain\\njurisdiction in this panel for the sole purpose of promoting speedy\\nadministrative review.\\n Judge JACOBS dissents in a separate opinion.\\n\\n\\n\\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\\n Joseph A. Bondy, on the brief), New York, NY, for\\n Plaintiffs‐Appellants.\\n\\n Samuel Dolinger, Assistant United States\\n Attorney (Benjamin H. Torrance, Assistant\\n United States Attorney, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, NY,\\n for Defendants‐Appellees.\\n\\n\\n\\nGUIDO CALABRESI, Circuit Judge:\\n\\n This is the latest in a series of cases that stretch back decades and which\\n\\nhave long sought to strike down the federal government’s classification of\\n\\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\\n\\n 3\\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\\n\\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\\n\\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\\n\\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\\n\\none significant respect: among the Plaintiffs are individuals who plausibly allege\\n\\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\\n\\ntheir health. We agree with the District Court that Plaintiffs should attempt to\\n\\nexhaust their administrative remedies before seeking relief from us, but we are\\n\\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\\n\\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\\n\\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\\n\\nthis panel to take whatever action might become appropriate if the DEA does not\\n\\nact with adequate dispatch.\\n\\n STANDARD OF REVIEW\\n\\n The trial court granted Defendants’ motion under Federal Rules of Civil\\n\\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\\n\\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\\n\\n 4\\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\\n\\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\\n\\n BACKGROUND\\n\\n Parties\\n\\n As this case reaches us at the motion to dismiss stage, we must treat the\\n\\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\\n\\npleadings, Plaintiffs are several individuals and a membership organization with\\n\\nan interest in the regulation of marijuana. They assert that the classification of\\n\\ncannabis as a Schedule I substance under the CSA harms them in one or more\\n\\nways.\\n\\n Marvin Washington is an African‐American businessman working in the\\n\\nmedical marijuana space. He would like to expand his business into whole‐plant\\n\\ncannabis products and take advantage of the federal Minority Business\\n\\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\\n\\nscheduling.\\n\\n Alexis Bortell and Jagger Cotte are children with dreadful medical\\n\\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\\n\\nLeigh’s disease. They allege that they exhausted traditional treatment options\\n\\n 5\\nbefore finding success medicating with cannabis. They claim that marijuana has\\n\\nsaved their lives. Because of its Schedule I classification, however, they cannot\\n\\nbring their life‐saving medicine with them when they travel onto federal lands or\\n\\ninto states where marijuana is illegal. For Bortell, these travel limitations also\\n\\nmean that she cannot take full advantage of the veteran’s benefits to which she is\\n\\nentitled through her father. In addition, both Bortell and Cotte live in constant\\n\\nfear that their parents might be subject to arrest and prosecution for their\\n\\ninvolvement in their children’s medical treatment.\\n\\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\\n\\nstress disorder. After his honorable discharge, he became suicidal and was\\n\\nadjudged 70% disabled. He alleges that he pursued conventional therapies\\n\\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\\n\\nallowed him to manage his symptoms. He further asserts, like Bortell, that\\n\\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\\n\\nadvantage of his veteran’s benefits.\\n\\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\\n\\norganization dedicated to assisting people of color develop a presence in the\\n\\ncannabis industry. CCA is particularly focused on the way past convictions for\\n\\n 6\\npossession, cultivation, distribution, and use of marijuana have\\n\\ndisproportionately affected people of color and prevented minorities from\\n\\nparticipating in the new state‐legal marijuana industry.\\n\\n Defendants are the United States, the Attorney General, the Department of\\n\\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\\n\\nresponsible for implementing the CSA and, more particularly, for updating the\\n\\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\\n\\n Proceedings below\\n\\n Plaintiffs initiated the instant suit in the Southern District of New York in\\n\\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\\n\\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\\n\\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\\n\\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\\n\\nwas without a rational basis, (b) that the classification was arbitrary and\\n\\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\\n\\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\\n\\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\\n\\n 7\\nAmendment rights, including, inter alia, substantive due process and the\\n\\nfundamental right to travel.\\n\\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\\n\\nmedical marijuana treatment regimens and the federal government’s own\\n\\ninvolvement in medical marijuana research require a reexamination of\\n\\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\\n\\nas well as an injunction restraining Defendants from enforcing the CSA with\\n\\nrespect to cannabis. In reply, Defendants moved to dismiss.\\n\\n After argument, the District Court granted the government’s motion and\\n\\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\\n\\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\\n\\nexhaust their administrative remedies and that they did not qualify for an\\n\\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\\n\\narguments persuasive and deemed their claims to be either foreclosed by\\n\\nprecedent or without legal authority. The Court additionally held that CCA\\n\\nfailed to establish that it had standing to pursue its claim, since the relief it\\n\\nsought would not redress the injury its members had allegedly suffered. The\\n\\n 8\\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\\n\\nfollowed.\\n\\n DISCUSSION\\n\\n We resolve this case without reaching most of Plaintiffs’ disparate\\n\\narguments. As the District Court correctly observed, Plaintiffs challenge the\\n\\ncurrent classification of marijuana as a Schedule I substance under the CSA but\\n\\ndid not first bring this challenge to the agency that has the authority to\\n\\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\\n\\nthe exhaustion of administrative remedies, our precedents indicate that it is\\n\\ngenerally to be required as a prudential rule of judicial administration. We agree\\n\\nwith the District Court that exhaustion was appropriate here. But in light of the\\n\\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\\n\\n\\n\\n\\n3The CSA places in the Attorney General the power to schedule, reschedule, or\\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\\nrecommendations, as to whether such drug or other substance should be so controlled\\nor removed,” which “shall be binding on the Attorney General as to such scientific and\\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\\nor “on the petition of any interested party.” Id. § 811(a).\\n\\n 9\\nthe proceedings we must accept as true, and their argument that the\\n\\nadministrative process may not move quickly enough to afford them adequate\\n\\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\\n\\ntaking whatever action might become appropriate should the DEA not act with\\n\\nadequate dispatch. We wish to make clear, however, that, in doing so, we\\n\\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\\n\\nmarijuana should be listed or not.\\n\\n Exhaustion of administrative remedies is appropriate here.\\n\\n The administrative state is a topic of much debate these days. See Gillian\\n\\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\\n\\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\\n\\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\\n\\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\\n\\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\\n\\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\\n\\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\\n\\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\\n\\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\\n\\n 10\\nadministrative state back to the Founding). Regardless of one’s point of view, it\\n\\nremains at the moment a key part of our legal regime. The doctrines that\\n\\nregulate the relationship between courts and administrative agencies are thus of\\n\\nparticular importance. They attempt to reconcile the advantages of expertise,\\n\\nflexibility, and efficiency with the safeguards of government under law. See\\n\\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\\n\\nAmerica, 1900‐1940 (2014).\\n\\n Exhaustion of administrative remedies is one such doctrine. It holds that\\n\\nfederal courts should refrain from adjudicating a controversy if the party\\n\\nbringing suit might obtain adequate relief through a proceeding before an\\n\\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\\n\\nis entitled to judicial relief for a supposed or threatened injury until the\\n\\nprescribed administrative remedy has been exhausted.”) (internal quotation\\n\\nmarks and citations omitted). The duty to exhaust administrative remedies can\\n\\nspring from legislation or from judicial decision. “Where Congress specifically\\n\\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\\n\\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\\n\\nU.S. 516 (2002). “But [even] where Congress has not clearly required\\n\\n 11\\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\\n\\nId.\\n\\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\\n\\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\\n\\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\\n\\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\\n\\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\\n\\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\\n\\nstatutory requirement of exhaustion is not explicit, courts are guided by\\n\\ncongressional intent in determining whether application of the doctrine would\\n\\nbe consistent with the statutory scheme.”).\\n\\n Although the CSA does not mandate exhaustion of administrative\\n\\nremedies, we agree with the court below that exhaustion here is consistent with\\n\\ncongressional intent and is therefore appropriate. This judgment flows from our\\n\\nanalysis of the text and structure of the Act.\\n\\n The text of the CSA shows that Congress sought to favor administrative\\n\\ndecisionmaking. In several places, the words of the statute either presume or\\n\\ncreate an administrative process to review the classification of drugs under the\\n\\n 12\\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\\n\\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\\n\\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\\n\\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\\n\\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\\n\\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\\n\\nto the Secretary of Health and Human Services on certain medical and scientific\\n\\nmatters. And § 811(c) lists several factors the Attorney General must consider\\n\\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\\n\\n41.\\n\\n These provisions, among others, establish that Congress intended to\\n\\nimplement scheduling decisions under the CSA through an administrative\\n\\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\\n\\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\\n\\nfederal court to pursue reclassification, the language Congress devised to erect\\n\\nan administrative review process would be rendered a nullity. It follows that\\n\\nconstruing the Act to allow such behavior as a matter of course would violate a\\n\\n 13\\nbasic canon of statutory interpretation: that, if possible, every provision of a\\n\\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\\n\\n The structure of the Act reinforces the language used and hence our\\n\\nconclusion that Congress wanted aggrieved parties to pursue reclassification\\n\\nthrough agencies, and not, in the first instance, through the federal courts. The\\n\\nCSA relies on an administrative process to operate effectively. When Congress\\n\\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\\n\\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\\n\\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\\n\\nBut the statute contemplated that these initial lists would be regularly revised\\n\\nand updated by the Attorney General, in consultation with the Secretary of\\n\\nHealth and Human Services, and that this would be done according to a specific\\n\\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\\n\\nincorporates an administrative process into its structure. Indeed, its logic and\\n\\ndesign depend on administration and agency actions to realize its aims. Not to\\n\\nrequire exhaustion in the ordinary case would therefore undermine the text and\\n\\nstructure of the CSA.\\n\\n 14\\n In addition, requiring exhaustion is eminently sensible here. The Supreme\\n\\nCourt has told us that exhaustion furthers two important goals. First, it\\n\\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\\n\\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\\n\\nexhaustion recognizes “that agencies . . . have primary responsibility for the\\n\\nprograms that Congress has charged them to administer.” Id. Second,\\n\\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\\n\\nchance to resolve a dispute, thus either rendering controversies moot or\\n\\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\\n\\n Both purposes are advanced by requiring exhaustion in the instant case.\\n\\nThe Supreme Court has recognized that protecting agency authority is a\\n\\nparticularly compelling aim where “the agency proceedings in question allow\\n\\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\\n\\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\\n\\nthe question raised by Plaintiffs’ suit is whether developments in medical\\n\\nresearch and government practice should lead to the reclassification of\\n\\nmarijuana. This is precisely the kind of question that calls for the application of\\n\\nspecial knowledge. Exhaustion here “protect[s] administrative agency\\n\\n 15\\nauthority” by leaving this decision in the first instance to the specialists at the\\n\\nDEA and the Department of Health and Human Services. Id.\\n\\n Administrative exhaustion will also promote judicial efficiency in the ways\\n\\nidentified by the Supreme Court. It is conceivable that, in response to a petition\\n\\nfrom Plaintiffs along the lines advanced before us now, the DEA would\\n\\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\\n\\nthe administrative process would generate a comprehensive record that would\\n\\naid in eventual judicial review. The Supreme Court has observed that the\\n\\ncreation of such a record can be “especially” beneficial “in a complex or technical\\n\\nfactual context,” id., which is the context involved in the case at bar. Accord\\n\\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\\n\\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\\n\\n Moreover, we think that the kinds of arguments Plaintiffs advance make\\n\\nthis case well suited to administrative evaluation and inappropriate for federal\\n\\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\\n\\nevent or singular discovery has rendered the previous classification of marijuana\\n\\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\\n\\nunderstanding of the uses and dangers of marijuana warrants a change in\\n\\n 16\\nmarijuana’s classification. This argument raises a complex policy question:\\n\\nwhether the extant regulatory regime continues to advance the CSA’s goals in\\n\\nlight of the current state of our knowledge about the drug. It is possible that the\\n\\ncurrent law, though rational once, is now heading towards irrationality; it may\\n\\neven conceivably be that it has gotten there already. Courts are not especially\\n\\ngood at dealing with situations of this sort by themselves. In such circumstances,\\n\\ndialogue between courts and other law‐defining institutions, like agencies, often\\n\\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\\n\\nJ., concurring).\\n\\n A sensible response to our evolving understanding about the effects of\\n\\nmarijuana might require creating new policies just as much as changing old ones.\\n\\nThis kind of constructive governmental work, mixing adjudication and program‐\\n\\ndesign, creating policy through the balancing of competing legitimate interests, is\\n\\nnot generally best accomplished by federal courts on their own; it is, however,\\n\\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\\n\\nProcess (1938). Assuming, of course, that one can get the administrative agency\\n\\nto act.\\n\\n 17\\n For the foregoing reasons, requiring exhaustion is appropriate in the\\n\\ninstant case. Although not mandated by Congress, it is consistent with\\n\\ncongressional intent, as manifested in the CSA’s text and structure. And it\\n\\nadvances the goals that the Supreme Court has announced the doctrine serves.\\n\\nThe District Court’s decision to require exhaustion here was therefore correct.\\n\\n None of the recognized exceptions to the doctrine govern this case at this\\n time.\\n\\n Even where exhaustion is seemingly mandated by statute or decisional\\n\\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\\n\\nexceptions to the exhaustion requirement under “three broad sets of\\n\\ncircumstances.” McCarthy, 503 U.S. at 146.\\n\\n First, exhaustion may be unnecessary where it would be futile, either\\n\\nbecause agency decisionmakers are biased or because the agency has already\\n\\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\\n\\nexception currently applies here. Plaintiffs cite to various public statements by\\n\\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\\n\\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\\n\\nadministrative process would be biased against them. But Plaintiffs’ evidence,\\n\\neven if given the interpretation they suggest, does not qualify them for the\\n\\n 18\\nexception, since the public statements relied on do not implicate the relevant\\n\\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\\n\\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\\n\\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\\n\\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\\n\\nServices that matters, not the judgment of the Attorney General or the head of\\n\\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\\n\\nSecretary to the Attorney General shall be binding on the Attorney General as to\\n\\n[the] scientific and medical” evaluation of substances considered for scheduling).\\n\\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\\n\\nFutility on account of bias has, therefore, not been adequately alleged.\\n\\n The Supreme Court has further stated that exhaustion may be unnecessary\\n\\nwhere the administrative process would be incapable of granting adequate relief.\\n\\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\\n\\nmoment. Although Plaintiffs style their claims in many different ways, the\\n\\ngravamen of their argument is that marijuana should not be classified as a\\n\\nSchedule I substance under the CSA. Were a court to agree, the remedy would\\n\\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\\n\\n 19\\nis not available through the administrative process. It is precisely the remedy\\n\\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\\n\\nentitled to bypass exhaustion under this second exception either.\\n\\n Finally, exhaustion may be unnecessary where pursuing agency review\\n\\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\\n\\nparticular, “an unreasonable or indefinite timeframe for administrative action”\\n\\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\\n\\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\\n\\nevery delay will be sufficiently severe to justify waiver, however. Although, in\\n\\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\\n\\nthan the often lengthy administrative review process,” a mere preference for\\n\\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\\n\\n“[T]hreatened or impending irreparable injury flowing from delay incident to\\n\\nfollowing the prescribed [administrative] procedure” militates in favor of\\n\\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\\n\\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\\n\\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\\n\\n 20\\n Despite the apparently dire situation of some of the Plaintiffs, they do not\\n\\nyet meet the requirement for this exception to the exhaustion requirement. In\\n\\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\\n\\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\\n\\nNor have Plaintiffs otherwise explained how pursuing agency review would\\n\\nsubject them to an additional “irreparable injury flowing from delay incident” to\\n\\nthe administrative process itself. Id. at 773. Accordingly, despite their\\n\\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\\n\\nagency review.\\n\\n United States v. Kiffer does not require that we waive exhaustion here at\\n the moment.\\n\\n The exhaustion requirement under the CSA is, however, prudential, not\\n\\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\\n\\nadministrative rule, applied by courts in their discretion.\\n\\n This explains why this Court has, on at least one previous occasion,\\n\\nconsidered a challenge to the scheduling of marijuana under the CSA without\\n\\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\\n\\ncase is readily distinguishable, however, and its holding does not mean that\\n\\nexhaustion should not be required in the current case at this time. The Kiffer\\n\\n 21\\nCourt began by observing that “timely and successful use of th[e] administrative\\n\\n[process] would have obtained for [the] appellants [in that case] the very relief\\n\\nthey seek from us—a declaration either that mari[j]uana should not be subject to\\n\\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\\n\\nCourt began, then, with the assumption that exhaustion did apply. It waived the\\n\\nnormal requirement only because of two factors that do not obtain in the instant\\n\\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\\n\\ncases is generally not favored,” id. at 352, and, second and more significantly,\\n\\nbecause, at the time Kiffer was heard, the federal government had taken the\\n\\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\\n\\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\\n\\nwhere “there [wa]s some doubt whether appellants in fact [had] an\\n\\nadministrative remedy,” the Court declined to require exhaustion. Id. The\\n\\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\\n\\nheld, foreign treaty commitments have not divested the Attorney General of the\\n\\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\\n\\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\\n\\nresult is therefore not controlling. In fact, the case’s logic reinforces our\\n\\n 22\\nconclusion that Plaintiffs should attempt to exhaust their administrative\\n\\nremedies before seeking relief from us. But Kiffer also makes clear that, when\\n\\nappropriate, we do have the power to act even if the administrative agency has\\n\\nnot.\\n\\n Strong interests compel this Court to retain jurisdiction.\\n\\n This case reaches us as an appeal from a ruling on a motion to dismiss.\\n\\nUnder settled principles of adjudication, we must, therefore, accept the well‐\\n\\npleaded facts in the complaint as true. Taking the facts as alleged, and,\\n\\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\\n\\nmarijuana as true as well, we—like the District Court below—are struck by the\\n\\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\\n\\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\\n\\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\\n\\nmade pain manageable. If true, these are no small things. Plaintiffs should not\\n\\nbe required to live indefinitely with uncertainty about their access to allegedly\\n\\nlife‐saving medication or live in fear that pursuing such medical treatment may\\n\\nsubject them or their loved ones to devastating consequences.\\n\\n 23\\n Plaintiffs argue that the administrative process will prolong their ordeal\\n\\nintolerably. And their argument is not without force. Plaintiffs document that\\n\\nthe average delay in deciding petitions to reclassify drugs under the CSA is\\n\\napproximately nine years. Such long delays cast doubt on the appropriateness of\\n\\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\\n\\nAnd where, as here, health is involved, delay can be even more problematic. See\\n\\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\\n\\nattending exhaustion would subject claimants to deteriorating health . . . then\\n\\nwaiver [of exhaustion] may be appropriate”).\\n\\n Indeed, on the alleged facts, which, we repeat, we must for now take as\\n\\ntrue, undue delay by the agency might make applicable each of the three\\n\\nexceptions to exhaustion that the Supreme Court has recognized and which we\\n\\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\\n\\nhealth consequences, could make exhaustion futile. Moreover, the relief the\\n\\nagency might provide could, because of undue delay, become inadequate. And\\n\\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\\n\\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\\n\\nsufficient harm as a result of the time it would take to pursue the administrative\\n\\n 24\\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\\n\\nplausibly raise the specter of delay and plausibly suggest that the delay could\\n\\nbecome problematic. And although agencies, like legislatures, are often the best\\n\\ndecisionmakers, this is so only when they actually do decide.\\n\\n Courts have, moreover, on occasion deemed it proper to encourage\\n\\nprompt decisionmaking. Thus, where agencies have a history of dilatory\\n\\nproceedings, federal courts have sometimes retained jurisdiction of related cases\\n\\nto facilitate swift review. In Telecommunications Research and Action Center v.\\n\\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\\n\\nin part because of the failure of a federal agency to act with adequate speed. See\\n\\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\\n\\nmandamus,” the court stated, they were significant enough that it should retain\\n\\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\\n\\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\\n\\n(observing that “it is well established that we may retain jurisdiction over [a case]\\n\\n 25\\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\\n\\n1995) (Calabresi, J., concurring).4\\n\\n We think it possible that future action by us may become appropriate here.\\n\\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\\n\\nmandamus to force the DEA to act. But we exercise our discretion to keep\\n\\njurisdiction of the case in this panel, to take whatever action may become\\n\\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\\n\\npromptly. And we note that, under the unusual health‐related circumstances of\\n\\nthis case, what has counted as appropriate speed in the past may not count as\\n\\nappropriate speed here.\\n\\n In doing this, we specify that we are not retaining jurisdiction to review\\n\\nthe actions the agency may take. Jurisdiction over those may well lie solely in\\n\\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\\n\\nPlaintiffs seek agency review and so inform us within six months, we will affirm\\n\\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\\n\\n\\n\\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\\nmake clear that we make no such assertion of power in the federal courts generally.\\n\\n 26\\nseek agency review, we will dismiss the complaint as to those who do not.) But\\n\\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\\n\\nPlaintiffs may return directly to us, under our retained jurisdiction.5\\n\\n To be clear, we repeat that this case remains in our purview only to the\\n\\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\\n\\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\\n\\ninducing the agency to act promptly.\\n\\n CONCLUSION\\n\\n Because Plaintiffs failed to exhaust their administrative remedies and do\\n\\nnot at this time qualify for an exception to the exhaustion doctrine, the District\\n\\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\\n\\nagency first. But, in light of the unusual circumstances of this case, we hold the\\n\\ncase in abeyance and retain jurisdiction in this panel to take whatever further\\n\\n\\n\\n\\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\\nnot implausible, we must take them as true at this stage of the litigation. Should the\\nagency fail to act, we would, before proceeding further, however, have to look into the\\nallegations more deeply. Accordingly, should the case return to us, it may be\\nappropriate to remand to the District Court for further factfinding. At that time, if\\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\\ntheir allegations, summary judgment against them would be appropriate.\\n\\n 27\\naction might become appropriate should Plaintiffs initiate administrative review\\n\\nand the administrative process fail to operate with adequate dispatch.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402099/\", \"author_raw\": \"GUIDO CALABRESI, Circuit Judge:\"}, {\"author\": \"DENNIS JACOBS, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DENNIS JACOBS, Circuit Judge, dissenting:\\n\\n The plaintiffs seek a declaration that the classification of marijuana as a\\nSchedule 1 substance is unconstitutional because it does not reflect contemporary\\nlearning regarding the drug’s medicinal uses. I agree with the District Court that\\nthis case must be dismissed for failure to exhaust administrative remedies in the\\nDrug Enforcement Agency (“DEA”). The majority opinion does not actually\\ndisagree, though it seems to treat lack of jurisdiction as a prudential speed bump.\\nI dissent from the majority opinion’s decision to hold the case in abeyance so that\\nwe may turn back to it if, at some future time, we get jurisdiction.\\n\\n The majority posits that jurisdiction may materialize if the plaintiffs,\\nclaiming emergency, do not obtain a prompt decision on their not‐yet filed\\npetition to the DEA‐‐but this seems to be no all‐fired emergency, given that the\\nplaintiffs are afforded half a year to file a petition on which hang supposed\\n“serious, life‐or‐death” consequences. Majority Op. 3. For the following reasons,\\nthe plaintiffs’ claims of emergency are tenuous, and constitute a further argument\\nagainst retaining jurisdiction that we do not have in order to hurry along an\\nadministrative decision on a petition that has not been filed.\\n\\n Plaintiffs Dean Bortell and Sebastien Cotte sue on behalf of their severely\\n ill children, who rely on marijuana for treatment. Bortell and Cotte\\n concede that their children get all the treatment they need, including\\n marijuana, and dwell in states that do not outlaw it or that do not enforce\\n any vestigial prohibition; their grounds for claiming urgency are that their\\n children are unable to take that medicine with them if they travel onto\\n federal lands or into states where marijuana is illegal. The parents add\\n that they suffer fear they might be subject to federal prosecution because\\n they are involved in their children’s medical treatment. I view these\\n claims as contrived and fanciful. Nobody need fear severe consequences\\n for administering medical marijuana to sick children.\\n\\n Jose Belen is a veteran with post‐traumatic stress disorder who\\n successfully uses marijuana to manage his symptoms, but complains that\\n his travel is restricted and that he cannot take full advantage of his\\n veterans benefits (presumably for the government to pay for the\\n marijuana).\\n\\n Plaintiff Marvin Washington asserts that he is impeded from seeking\\n federal aid to expand his business so that he can sell cannabis products.\\n No emergency here, and likely no standing either.\\n\\n Finally, the Cannabis Cultural Association assists people of color who wish\\n to participate in the cannabis industry but who cannot because they\\n jumped the gun, and have been arrested or convicted for cannabis use. I\\n cannot see that this Association has standing to challenge the classification\\n of marijuana under the nation’s drug laws, let alone to seek an emergency\\n resolution of that issue.\\n\\n * * *\\n\\n As to the Judgment below, which dismissed the claims for failure to\\nexhaust administrative remedies, I agree with the District Court‐‐and with the\\nmajority opinion, which agrees that exhaustion is required (at least for now).\\n\\n I part company with the majority opinion insofar as it holds the case in\\nabeyance with the expectation of taking some measures if the DEA fails to act\\nwith “adequate dispatch.” Majority Op. 27. Our failure to dismiss the case now\\nis error for several reasons that are easily stated.\\n\\n First, it is common ground that the case was properly dismissed under\\n12(b)(1) for failure to exhaust remedies; so neither this Court nor the District\\nCourt has jurisdiction to grant a remedy. And we cannot simply decide to wait\\nfor jurisdiction that (as we are properly ruling) we do not have. Our job as a\\ncircuit court is to issue mandates. We do not fulfill the requirements of the job by\\nholding a case in abeyance on the off chance that we may get jurisdiction to\\ndecide it in the future.\\n\\n Second, the terms of the hold on this case are without content: we may\\ntake “whatever further action” if the agency fails to act “promptly” or “with\\nadequate dispatch” or “[with] appropriate speed” or “with alacrity”. Majority\\nOp. 25‐27. This is of no help‐‐the DEA is unlikely to discern what “adequate\\n\\n\\n\\n\\n 2\\n\\ndispatch” or “appropriate speed” may mean for an issue that (as the majority\\nopinion observes) “stretch[es] back decades”.1 Majority Op. 2.\\n\\n * * *\\n\\n Given all this, it would be surprising if solid precedent supported this\\nprocedural invention. The majority opinion adduces none. The majority thinks\\nthat United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973), “makes clear that, when\\nappropriate, we do have the power to act even if the administrative agency has\\nnot.” Majority Op. 22. But in that case, the Court excused administrative\\nexhaustion only because the defendant had shown that exhaustion would be\\nfutile and unduly prejudicial. Id. at 351‐352 (“[I]t appears now that the\\nadministrative route for [the defendants] would at best provide an uncertain and\\nindefinitely delayed remedy . . . [and impose on them a] severe burden.”).\\nAccordingly, Kiffer stands only for the uncontroversial proposition that\\nexhaustion may be excused where it would be futile or unduly prejudicial; it\\ndoes not condone waiting around until an exception is met. The majority\\nopinion (correctly) concludes that the plaintiffs do not meet the requirements for\\neither exception. The relevance of Kiffer ends there.\\n\\n The majority opinion relies on Telecommunications Research & Action\\nCenter v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (“TRAC v. F.C.C.”); but that Court\\ndecided a mandamus petition (none is before us here). Moreover, the court did\\nnot hold the case in abeyance, but retained jurisdiction (that it already had) only\\nto ensure that the agency fulfilled its sua sponte promise to address the issue\\nexpeditiously. And the court gave the agency specific direction. Id. at 80‐81\\n(directing the agency to advise the Court of its progress every 60 days).\\n\\n\\n 1 The majority opinion also limits its “purview” to a failure of the agency\\nto act with “adequate, if deliberate, speed.” Majority Op. 26. The echo of that\\nphrase from Brown v. Board of Education II is unfortunate, however, given that,\\nin the many decades since, school integration is an unfinished project. The\\nphrase seems to be derived from Admiralty law in the days of sail, which\\nlikewise offers no useful context. And in Francis Thompson’s ʺHound of\\nHeaven,ʺ “deliberate speed” is the pace by which God pursues us. No help there\\neither.\\n\\n 3\\n\\n The majority opinion’s “e.g.” cite to a single Ninth Circuit summary order\\ndoes not bespeak a wealth of examples. In that case as well, the court considered\\na mandamus petition. It decided that a writ of mandamus was not warranted,\\nand declined to retain jurisdiction, citing only TRAC v. F.C.C. for the proposition\\nthat it could have retained jurisdiction if it wanted to. In re Pesticide Action\\nNetwork N. Am., 532 F. App’x 649, 652 (9th Cir. 2013). (The parenthetical quote\\nfrom Pesticide classifies itself as “well‐established”‐‐often a tell that the point is a\\nnovation.) The majority’s remaining authority, a concurring opinion by Judge\\nCalabresi, advances the speculative idea that courts may prod government when\\nlaws outlive the views of the bien pensant community. None of these cases\\nsupports the idea that a court is permitted to hold a case in abeyance because the\\ncourt may on contingency gain jurisdiction to hear it, and can bully the agency in\\nthe meantime. As near as I can make it out, the holding of the majority opinion\\nis: a court without jurisdiction should proceed with caution.\\n\\n * * *\\n\\n I doubt that the DEA will be hurrying its work on an application that these\\nplaintiffs have not yet filed, seeking administrative action on an old and ramified\\ncontroversy. Unless the panel opinion precipitates a swift administrative\\nrejection, there is no reason to anticipate a swift ruling that entails the assessment\\nof countervailing risks, the pendency of legislation, and the eliciting of opinions\\non issues of medicine and public health. So I fully expect to see further\\nproceedings in this appeal. No one can tell what this panel could do then, or\\n(more accurately) would do. In the meantime, the one thing that will not happen\\nis the issuance of the mandate, since I presume the majority will not thus oust\\nthis panel and this Court of the ability to take “whatever further action” may be\\nnecessary. Majority Op. 26. As and when this case returns to this Court and this\\npanel, I will be an interested and bemused spectator.\\n\\n\\n\\n\\n 4\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402099/\", \"author_raw\": \"DENNIS JACOBS, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"CALABRESI"},"judge3":{"kind":"string","value":"RAKOFF"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JACOBS\": \", Circuit\", \"CALABRESI\": \", Circuit\", \"RAKOFF\": \", District\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624846/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Washington v. Barr\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-30\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18-859-cv\nWashington et al. v. Barr et al.\n\n\n\n 1\n 18‐859‐cv\n Washington et al. v. Barr et al.\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n August Term, 2018\n\n (Argued: December 12, 2018 Decided: May 30, 2019)\n\n Docket No. 18‐859‐cv\n\n\n\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\n\n Plaintiffs‐Appellants,\n\n – v. –\n\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\n his official capacity as the Acting Administrator of the Drug Enforcement\n Administration, UNITED STATES DRUG ENFORCEMENT\n ADMINISTRATION, and UNITED STATES OF AMERICA,\n Defendants‐Appellees,1\n\n\n\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\n\n\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\n above.\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\n\n New York, sitting by designation.\n\n 2\n Appeal from the judgment of the United States District Court for the\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\net seq. But Plaintiffs did not first pursue reclassification through the\nadministrative process defined in the Act. Accordingly, their action is\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\nto exhaust their administrative remedies, we should not hear their suit at this\ntime. In view of the unusual circumstances of this case, however, we retain\njurisdiction in this panel for the sole purpose of promoting speedy\nadministrative review.\n Judge JACOBS dissents in a separate opinion.\n\n\n\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\n Joseph A. Bondy, on the brief), New York, NY, for\n Plaintiffs‐Appellants.\n\n Samuel Dolinger, Assistant United States\n Attorney (Benjamin H. Torrance, Assistant\n United States Attorney, on the brief), for Geoffrey\n S. Berman, United States Attorney for the\n Southern District of New York, New York, NY,\n for Defendants‐Appellees.\n\n\n\nGUIDO CALABRESI, Circuit Judge:\n\n This is the latest in a series of cases that stretch back decades and which\n\nhave long sought to strike down the federal government’s classification of\n\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\n\n 3\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\n\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\n\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\n\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\n\none significant respect: among the Plaintiffs are individuals who plausibly allege\n\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\n\ntheir health. We agree with the District Court that Plaintiffs should attempt to\n\nexhaust their administrative remedies before seeking relief from us, but we are\n\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\n\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\n\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\n\nthis panel to take whatever action might become appropriate if the DEA does not\n\nact with adequate dispatch.\n\n STANDARD OF REVIEW\n\n The trial court granted Defendants’ motion under Federal Rules of Civil\n\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\n\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\n\n 4\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\n\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\n\n BACKGROUND\n\n Parties\n\n As this case reaches us at the motion to dismiss stage, we must treat the\n\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\n\npleadings, Plaintiffs are several individuals and a membership organization with\n\nan interest in the regulation of marijuana. They assert that the classification of\n\ncannabis as a Schedule I substance under the CSA harms them in one or more\n\nways.\n\n Marvin Washington is an African‐American businessman working in the\n\nmedical marijuana space. He would like to expand his business into whole‐plant\n\ncannabis products and take advantage of the federal Minority Business\n\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\n\nscheduling.\n\n Alexis Bortell and Jagger Cotte are children with dreadful medical\n\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\n\nLeigh’s disease. They allege that they exhausted traditional treatment options\n\n 5\nbefore finding success medicating with cannabis. They claim that marijuana has\n\nsaved their lives. Because of its Schedule I classification, however, they cannot\n\nbring their life‐saving medicine with them when they travel onto federal lands or\n\ninto states where marijuana is illegal. For Bortell, these travel limitations also\n\nmean that she cannot take full advantage of the veteran’s benefits to which she is\n\nentitled through her father. In addition, both Bortell and Cotte live in constant\n\nfear that their parents might be subject to arrest and prosecution for their\n\ninvolvement in their children’s medical treatment.\n\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\n\nstress disorder. After his honorable discharge, he became suicidal and was\n\nadjudged 70% disabled. He alleges that he pursued conventional therapies\n\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\n\nallowed him to manage his symptoms. He further asserts, like Bortell, that\n\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\n\nadvantage of his veteran’s benefits.\n\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\n\norganization dedicated to assisting people of color develop a presence in the\n\ncannabis industry. CCA is particularly focused on the way past convictions for\n\n 6\npossession, cultivation, distribution, and use of marijuana have\n\ndisproportionately affected people of color and prevented minorities from\n\nparticipating in the new state‐legal marijuana industry.\n\n Defendants are the United States, the Attorney General, the Department of\n\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\n\nresponsible for implementing the CSA and, more particularly, for updating the\n\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\n\n Proceedings below\n\n Plaintiffs initiated the instant suit in the Southern District of New York in\n\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\n\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\n\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\n\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\n\nwas without a rational basis, (b) that the classification was arbitrary and\n\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\n\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\n\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\n\n 7\nAmendment rights, including, inter alia, substantive due process and the\n\nfundamental right to travel.\n\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\n\nmedical marijuana treatment regimens and the federal government’s own\n\ninvolvement in medical marijuana research require a reexamination of\n\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\n\nas well as an injunction restraining Defendants from enforcing the CSA with\n\nrespect to cannabis. In reply, Defendants moved to dismiss.\n\n After argument, the District Court granted the government’s motion and\n\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\n\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\n\nexhaust their administrative remedies and that they did not qualify for an\n\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\n\narguments persuasive and deemed their claims to be either foreclosed by\n\nprecedent or without legal authority. The Court additionally held that CCA\n\nfailed to establish that it had standing to pursue its claim, since the relief it\n\nsought would not redress the injury its members had allegedly suffered. The\n\n 8\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\n\nfollowed.\n\n DISCUSSION\n\n We resolve this case without reaching most of Plaintiffs’ disparate\n\narguments. As the District Court correctly observed, Plaintiffs challenge the\n\ncurrent classification of marijuana as a Schedule I substance under the CSA but\n\ndid not first bring this challenge to the agency that has the authority to\n\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\n\nthe exhaustion of administrative remedies, our precedents indicate that it is\n\ngenerally to be required as a prudential rule of judicial administration. We agree\n\nwith the District Court that exhaustion was appropriate here. But in light of the\n\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\n\n\n\n\n3The CSA places in the Attorney General the power to schedule, reschedule, or\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\nrecommendations, as to whether such drug or other substance should be so controlled\nor removed,” which “shall be binding on the Attorney General as to such scientific and\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\nor “on the petition of any interested party.” Id. § 811(a).\n\n 9\nthe proceedings we must accept as true, and their argument that the\n\nadministrative process may not move quickly enough to afford them adequate\n\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\n\ntaking whatever action might become appropriate should the DEA not act with\n\nadequate dispatch. We wish to make clear, however, that, in doing so, we\n\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\n\nmarijuana should be listed or not.\n\n Exhaustion of administrative remedies is appropriate here.\n\n The administrative state is a topic of much debate these days. See Gillian\n\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\n\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\n\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\n\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\n\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\n\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\n\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\n\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\n\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\n\n 10\nadministrative state back to the Founding). Regardless of one’s point of view, it\n\nremains at the moment a key part of our legal regime. The doctrines that\n\nregulate the relationship between courts and administrative agencies are thus of\n\nparticular importance. They attempt to reconcile the advantages of expertise,\n\nflexibility, and efficiency with the safeguards of government under law. See\n\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\n\nAmerica, 1900‐1940 (2014).\n\n Exhaustion of administrative remedies is one such doctrine. It holds that\n\nfederal courts should refrain from adjudicating a controversy if the party\n\nbringing suit might obtain adequate relief through a proceeding before an\n\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\n\nis entitled to judicial relief for a supposed or threatened injury until the\n\nprescribed administrative remedy has been exhausted.”) (internal quotation\n\nmarks and citations omitted). The duty to exhaust administrative remedies can\n\nspring from legislation or from judicial decision. “Where Congress specifically\n\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\n\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\n\nU.S. 516 (2002). “But [even] where Congress has not clearly required\n\n 11\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\n\nId.\n\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\n\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\n\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\n\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\n\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\n\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\n\nstatutory requirement of exhaustion is not explicit, courts are guided by\n\ncongressional intent in determining whether application of the doctrine would\n\nbe consistent with the statutory scheme.”).\n\n Although the CSA does not mandate exhaustion of administrative\n\nremedies, we agree with the court below that exhaustion here is consistent with\n\ncongressional intent and is therefore appropriate. This judgment flows from our\n\nanalysis of the text and structure of the Act.\n\n The text of the CSA shows that Congress sought to favor administrative\n\ndecisionmaking. In several places, the words of the statute either presume or\n\ncreate an administrative process to review the classification of drugs under the\n\n 12\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\n\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\n\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\n\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\n\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\n\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\n\nto the Secretary of Health and Human Services on certain medical and scientific\n\nmatters. And § 811(c) lists several factors the Attorney General must consider\n\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\n\n41.\n\n These provisions, among others, establish that Congress intended to\n\nimplement scheduling decisions under the CSA through an administrative\n\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\n\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\n\nfederal court to pursue reclassification, the language Congress devised to erect\n\nan administrative review process would be rendered a nullity. It follows that\n\nconstruing the Act to allow such behavior as a matter of course would violate a\n\n 13\nbasic canon of statutory interpretation: that, if possible, every provision of a\n\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\n\n The structure of the Act reinforces the language used and hence our\n\nconclusion that Congress wanted aggrieved parties to pursue reclassification\n\nthrough agencies, and not, in the first instance, through the federal courts. The\n\nCSA relies on an administrative process to operate effectively. When Congress\n\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\n\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\n\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\n\nBut the statute contemplated that these initial lists would be regularly revised\n\nand updated by the Attorney General, in consultation with the Secretary of\n\nHealth and Human Services, and that this would be done according to a specific\n\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\n\nincorporates an administrative process into its structure. Indeed, its logic and\n\ndesign depend on administration and agency actions to realize its aims. Not to\n\nrequire exhaustion in the ordinary case would therefore undermine the text and\n\nstructure of the CSA.\n\n 14\n In addition, requiring exhaustion is eminently sensible here. The Supreme\n\nCourt has told us that exhaustion furthers two important goals. First, it\n\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\n\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\n\nexhaustion recognizes “that agencies . . . have primary responsibility for the\n\nprograms that Congress has charged them to administer.” Id. Second,\n\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\n\nchance to resolve a dispute, thus either rendering controversies moot or\n\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\n\n Both purposes are advanced by requiring exhaustion in the instant case.\n\nThe Supreme Court has recognized that protecting agency authority is a\n\nparticularly compelling aim where “the agency proceedings in question allow\n\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\n\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\n\nthe question raised by Plaintiffs’ suit is whether developments in medical\n\nresearch and government practice should lead to the reclassification of\n\nmarijuana. This is precisely the kind of question that calls for the application of\n\nspecial knowledge. Exhaustion here “protect[s] administrative agency\n\n 15\nauthority” by leaving this decision in the first instance to the specialists at the\n\nDEA and the Department of Health and Human Services. Id.\n\n Administrative exhaustion will also promote judicial efficiency in the ways\n\nidentified by the Supreme Court. It is conceivable that, in response to a petition\n\nfrom Plaintiffs along the lines advanced before us now, the DEA would\n\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\n\nthe administrative process would generate a comprehensive record that would\n\naid in eventual judicial review. The Supreme Court has observed that the\n\ncreation of such a record can be “especially” beneficial “in a complex or technical\n\nfactual context,” id., which is the context involved in the case at bar. Accord\n\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\n\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\n\n Moreover, we think that the kinds of arguments Plaintiffs advance make\n\nthis case well suited to administrative evaluation and inappropriate for federal\n\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\n\nevent or singular discovery has rendered the previous classification of marijuana\n\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\n\nunderstanding of the uses and dangers of marijuana warrants a change in\n\n 16\nmarijuana’s classification. This argument raises a complex policy question:\n\nwhether the extant regulatory regime continues to advance the CSA’s goals in\n\nlight of the current state of our knowledge about the drug. It is possible that the\n\ncurrent law, though rational once, is now heading towards irrationality; it may\n\neven conceivably be that it has gotten there already. Courts are not especially\n\ngood at dealing with situations of this sort by themselves. In such circumstances,\n\ndialogue between courts and other law‐defining institutions, like agencies, often\n\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\n\nJ., concurring).\n\n A sensible response to our evolving understanding about the effects of\n\nmarijuana might require creating new policies just as much as changing old ones.\n\nThis kind of constructive governmental work, mixing adjudication and program‐\n\ndesign, creating policy through the balancing of competing legitimate interests, is\n\nnot generally best accomplished by federal courts on their own; it is, however,\n\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\n\nProcess (1938). Assuming, of course, that one can get the administrative agency\n\nto act.\n\n 17\n For the foregoing reasons, requiring exhaustion is appropriate in the\n\ninstant case. Although not mandated by Congress, it is consistent with\n\ncongressional intent, as manifested in the CSA’s text and structure. And it\n\nadvances the goals that the Supreme Court has announced the doctrine serves.\n\nThe District Court’s decision to require exhaustion here was therefore correct.\n\n None of the recognized exceptions to the doctrine govern this case at this\n time.\n\n Even where exhaustion is seemingly mandated by statute or decisional\n\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\n\nexceptions to the exhaustion requirement under “three broad sets of\n\ncircumstances.” McCarthy, 503 U.S. at 146.\n\n First, exhaustion may be unnecessary where it would be futile, either\n\nbecause agency decisionmakers are biased or because the agency has already\n\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\n\nexception currently applies here. Plaintiffs cite to various public statements by\n\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\n\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\n\nadministrative process would be biased against them. But Plaintiffs’ evidence,\n\neven if given the interpretation they suggest, does not qualify them for the\n\n 18\nexception, since the public statements relied on do not implicate the relevant\n\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\n\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\n\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\n\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\n\nServices that matters, not the judgment of the Attorney General or the head of\n\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\n\nSecretary to the Attorney General shall be binding on the Attorney General as to\n\n[the] scientific and medical” evaluation of substances considered for scheduling).\n\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\n\nFutility on account of bias has, therefore, not been adequately alleged.\n\n The Supreme Court has further stated that exhaustion may be unnecessary\n\nwhere the administrative process would be incapable of granting adequate relief.\n\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\n\nmoment. Although Plaintiffs style their claims in many different ways, the\n\ngravamen of their argument is that marijuana should not be classified as a\n\nSchedule I substance under the CSA. Were a court to agree, the remedy would\n\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\n\n 19\nis not available through the administrative process. It is precisely the remedy\n\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\n\nentitled to bypass exhaustion under this second exception either.\n\n Finally, exhaustion may be unnecessary where pursuing agency review\n\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\n\nparticular, “an unreasonable or indefinite timeframe for administrative action”\n\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\n\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\n\nevery delay will be sufficiently severe to justify waiver, however. Although, in\n\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\n\nthan the often lengthy administrative review process,” a mere preference for\n\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\n\n“[T]hreatened or impending irreparable injury flowing from delay incident to\n\nfollowing the prescribed [administrative] procedure” militates in favor of\n\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\n\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\n\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\n\n 20\n Despite the apparently dire situation of some of the Plaintiffs, they do not\n\nyet meet the requirement for this exception to the exhaustion requirement. In\n\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\n\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\n\nNor have Plaintiffs otherwise explained how pursuing agency review would\n\nsubject them to an additional “irreparable injury flowing from delay incident” to\n\nthe administrative process itself. Id. at 773. Accordingly, despite their\n\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\n\nagency review.\n\n United States v. Kiffer does not require that we waive exhaustion here at\n the moment.\n\n The exhaustion requirement under the CSA is, however, prudential, not\n\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\n\nadministrative rule, applied by courts in their discretion.\n\n This explains why this Court has, on at least one previous occasion,\n\nconsidered a challenge to the scheduling of marijuana under the CSA without\n\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\n\ncase is readily distinguishable, however, and its holding does not mean that\n\nexhaustion should not be required in the current case at this time. The Kiffer\n\n 21\nCourt began by observing that “timely and successful use of th[e] administrative\n\n[process] would have obtained for [the] appellants [in that case] the very relief\n\nthey seek from us—a declaration either that mari[j]uana should not be subject to\n\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\n\nCourt began, then, with the assumption that exhaustion did apply. It waived the\n\nnormal requirement only because of two factors that do not obtain in the instant\n\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\n\ncases is generally not favored,” id. at 352, and, second and more significantly,\n\nbecause, at the time Kiffer was heard, the federal government had taken the\n\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\n\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\n\nwhere “there [wa]s some doubt whether appellants in fact [had] an\n\nadministrative remedy,” the Court declined to require exhaustion. Id. The\n\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\n\nheld, foreign treaty commitments have not divested the Attorney General of the\n\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\n\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\n\nresult is therefore not controlling. In fact, the case’s logic reinforces our\n\n 22\nconclusion that Plaintiffs should attempt to exhaust their administrative\n\nremedies before seeking relief from us. But Kiffer also makes clear that, when\n\nappropriate, we do have the power to act even if the administrative agency has\n\nnot.\n\n Strong interests compel this Court to retain jurisdiction.\n\n This case reaches us as an appeal from a ruling on a motion to dismiss.\n\nUnder settled principles of adjudication, we must, therefore, accept the well‐\n\npleaded facts in the complaint as true. Taking the facts as alleged, and,\n\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\n\nmarijuana as true as well, we—like the District Court below—are struck by the\n\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\n\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\n\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\n\nmade pain manageable. If true, these are no small things. Plaintiffs should not\n\nbe required to live indefinitely with uncertainty about their access to allegedly\n\nlife‐saving medication or live in fear that pursuing such medical treatment may\n\nsubject them or their loved ones to devastating consequences.\n\n 23\n Plaintiffs argue that the administrative process will prolong their ordeal\n\nintolerably. And their argument is not without force. Plaintiffs document that\n\nthe average delay in deciding petitions to reclassify drugs under the CSA is\n\napproximately nine years. Such long delays cast doubt on the appropriateness of\n\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\n\nAnd where, as here, health is involved, delay can be even more problematic. See\n\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\n\nattending exhaustion would subject claimants to deteriorating health . . . then\n\nwaiver [of exhaustion] may be appropriate”).\n\n Indeed, on the alleged facts, which, we repeat, we must for now take as\n\ntrue, undue delay by the agency might make applicable each of the three\n\nexceptions to exhaustion that the Supreme Court has recognized and which we\n\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\n\nhealth consequences, could make exhaustion futile. Moreover, the relief the\n\nagency might provide could, because of undue delay, become inadequate. And\n\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\n\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\n\nsufficient harm as a result of the time it would take to pursue the administrative\n\n 24\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\n\nplausibly raise the specter of delay and plausibly suggest that the delay could\n\nbecome problematic. And although agencies, like legislatures, are often the best\n\ndecisionmakers, this is so only when they actually do decide.\n\n Courts have, moreover, on occasion deemed it proper to encourage\n\nprompt decisionmaking. Thus, where agencies have a history of dilatory\n\nproceedings, federal courts have sometimes retained jurisdiction of related cases\n\nto facilitate swift review. In Telecommunications Research and Action Center v.\n\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\n\nin part because of the failure of a federal agency to act with adequate speed. See\n\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\n\nmandamus,” the court stated, they were significant enough that it should retain\n\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\n\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\n\n(observing that “it is well established that we may retain jurisdiction over [a case]\n\n 25\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\n\n1995) (Calabresi, J., concurring).4\n\n We think it possible that future action by us may become appropriate here.\n\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\n\nmandamus to force the DEA to act. But we exercise our discretion to keep\n\njurisdiction of the case in this panel, to take whatever action may become\n\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\n\npromptly. And we note that, under the unusual health‐related circumstances of\n\nthis case, what has counted as appropriate speed in the past may not count as\n\nappropriate speed here.\n\n In doing this, we specify that we are not retaining jurisdiction to review\n\nthe actions the agency may take. Jurisdiction over those may well lie solely in\n\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\n\nPlaintiffs seek agency review and so inform us within six months, we will affirm\n\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\n\n\n\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\nmake clear that we make no such assertion of power in the federal courts generally.\n\n 26\nseek agency review, we will dismiss the complaint as to those who do not.) But\n\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\n\nPlaintiffs may return directly to us, under our retained jurisdiction.5\n\n To be clear, we repeat that this case remains in our purview only to the\n\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\n\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\n\ninducing the agency to act promptly.\n\n CONCLUSION\n\n Because Plaintiffs failed to exhaust their administrative remedies and do\n\nnot at this time qualify for an exception to the exhaustion doctrine, the District\n\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\n\nagency first. But, in light of the unusual circumstances of this case, we hold the\n\ncase in abeyance and retain jurisdiction in this panel to take whatever further\n\n\n\n\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\nnot implausible, we must take them as true at this stage of the litigation. Should the\nagency fail to act, we would, before proceeding further, however, have to look into the\nallegations more deeply. Accordingly, should the case return to us, it may be\nappropriate to remand to the District Court for further factfinding. At that time, if\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\ntheir allegations, summary judgment against them would be appropriate.\n\n 27\naction might become appropriate should Plaintiffs initiate administrative review\n\nand the administrative process fail to operate with adequate dispatch.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Washington v. Barr\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-30\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18-859-cv\\nWashington et al. v. Barr et al.\\n\\n\\n\\n 1\\n 18‐859‐cv\\n Washington et al. v. Barr et al.\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n August Term, 2018\\n\\n (Argued: December 12, 2018 Decided: May 30, 2019)\\n\\n Docket No. 18‐859‐cv\\n\\n\\n\\n MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS\\n BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER\\n COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.\\n\\n Plaintiffs‐Appellants,\\n\\n – v. –\\n\\n WILLIAM PELHAM BARR in his official capacity as United States Attorney\\n General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in\\n his official capacity as the Acting Administrator of the Drug Enforcement\\n Administration, UNITED STATES DRUG ENFORCEMENT\\n ADMINISTRATION, and UNITED STATES OF AMERICA,\\n Defendants‐Appellees,1\\n\\n\\n\\n Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2\\n\\n\\n 1 The Clerk of Court is respectfully requested to amend the official caption as set forth\\n above.\\n 2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of\\n\\n New York, sitting by designation.\\n\\n 2\\n Appeal from the judgment of the United States District Court for the\\nSouthern District of New York (Hellerstein, J.) dismissing, with prejudice,\\nPlaintiffs’ complaint for failure to exhaust administrative remedies and, in the\\nalternative, failure to state a claim. Plaintiffs challenged the inclusion of\\nmarijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801\\net seq. But Plaintiffs did not first pursue reclassification through the\\nadministrative process defined in the Act. Accordingly, their action is\\npremature. We agree with the District Court’s ruling that, since Plaintiffs failed\\nto exhaust their administrative remedies, we should not hear their suit at this\\ntime. In view of the unusual circumstances of this case, however, we retain\\njurisdiction in this panel for the sole purpose of promoting speedy\\nadministrative review.\\n Judge JACOBS dissents in a separate opinion.\\n\\n\\n\\n Michael S. Hiller, Hiller PC (Lauren A. Rudick,\\n Fatima V. Afia, and Jason E. Zakai, Hiller PC;\\n Joseph A. Bondy, on the brief), New York, NY, for\\n Plaintiffs‐Appellants.\\n\\n Samuel Dolinger, Assistant United States\\n Attorney (Benjamin H. Torrance, Assistant\\n United States Attorney, on the brief), for Geoffrey\\n S. Berman, United States Attorney for the\\n Southern District of New York, New York, NY,\\n for Defendants‐Appellees.\\n\\n\\n\\nGUIDO CALABRESI, Circuit Judge:\\n\\n This is the latest in a series of cases that stretch back decades and which\\n\\nhave long sought to strike down the federal government’s classification of\\n\\nmarijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21\\n\\n 3\\nU.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655\\n\\n(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d\\n\\n438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,\\n\\n15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in\\n\\none significant respect: among the Plaintiffs are individuals who plausibly allege\\n\\nthat the current scheduling of marijuana poses a serious, life‐or‐death threat to\\n\\ntheir health. We agree with the District Court that Plaintiffs should attempt to\\n\\nexhaust their administrative remedies before seeking relief from us, but we are\\n\\ntroubled by the Drug Enforcement Administration (DEA)’s history of dilatory\\n\\nproceedings. Accordingly, while we concur with the District Court’s ruling, we\\n\\ndo not dismiss the case, but rather hold it in abeyance and retain jurisdiction in\\n\\nthis panel to take whatever action might become appropriate if the DEA does not\\n\\nact with adequate dispatch.\\n\\n STANDARD OF REVIEW\\n\\n The trial court granted Defendants’ motion under Federal Rules of Civil\\n\\nProcedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its\\n\\ndecision de novo, accepting as true all of the complaint’s well‐pleaded facts. See\\n\\n 4\\nd’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);\\n\\nHarris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).\\n\\n BACKGROUND\\n\\n Parties\\n\\n As this case reaches us at the motion to dismiss stage, we must treat the\\n\\nwell‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their\\n\\npleadings, Plaintiffs are several individuals and a membership organization with\\n\\nan interest in the regulation of marijuana. They assert that the classification of\\n\\ncannabis as a Schedule I substance under the CSA harms them in one or more\\n\\nways.\\n\\n Marvin Washington is an African‐American businessman working in the\\n\\nmedical marijuana space. He would like to expand his business into whole‐plant\\n\\ncannabis products and take advantage of the federal Minority Business\\n\\nEnterprise Program, but, he alleges, he is impeded from so doing by the drug’s\\n\\nscheduling.\\n\\n Alexis Bortell and Jagger Cotte are children with dreadful medical\\n\\nproblems. Bortell suffers from chronic and intractable seizures; Cotte from\\n\\nLeigh’s disease. They allege that they exhausted traditional treatment options\\n\\n 5\\nbefore finding success medicating with cannabis. They claim that marijuana has\\n\\nsaved their lives. Because of its Schedule I classification, however, they cannot\\n\\nbring their life‐saving medicine with them when they travel onto federal lands or\\n\\ninto states where marijuana is illegal. For Bortell, these travel limitations also\\n\\nmean that she cannot take full advantage of the veteran’s benefits to which she is\\n\\nentitled through her father. In addition, both Bortell and Cotte live in constant\\n\\nfear that their parents might be subject to arrest and prosecution for their\\n\\ninvolvement in their children’s medical treatment.\\n\\n Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic\\n\\nstress disorder. After his honorable discharge, he became suicidal and was\\n\\nadjudged 70% disabled. He alleges that he pursued conventional therapies\\n\\nunsuccessfully. In despair, he turned to medical marijuana. This, he claims, has\\n\\nallowed him to manage his symptoms. He further asserts, like Bortell, that\\n\\nmarijuana’s Schedule I classification restricts his ability to travel and to take full\\n\\nadvantage of his veteran’s benefits.\\n\\n The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit\\n\\norganization dedicated to assisting people of color develop a presence in the\\n\\ncannabis industry. CCA is particularly focused on the way past convictions for\\n\\n 6\\npossession, cultivation, distribution, and use of marijuana have\\n\\ndisproportionately affected people of color and prevented minorities from\\n\\nparticipating in the new state‐legal marijuana industry.\\n\\n Defendants are the United States, the Attorney General, the Department of\\n\\nJustice, the Acting Administrator of the DEA, and the DEA itself. They are\\n\\nresponsible for implementing the CSA and, more particularly, for updating the\\n\\nclassification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).\\n\\n Proceedings below\\n\\n Plaintiffs initiated the instant suit in the Southern District of New York in\\n\\nJuly 2017 and filed the amended complaint now at issue on September 6, 2017.\\n\\nPlaintiffs raised numerous arguments for re‐ or descheduling marijuana,\\n\\nincluding, as relevant to this appeal, (a) that the classification of marijuana as a\\n\\nSchedule I drug exceeded Congress’s powers under the Commerce Clause and\\n\\nwas without a rational basis, (b) that the classification was arbitrary and\\n\\ncapricious, (c) that marijuana’s inclusion in the CSA was racially animated and is\\n\\nan act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,\\n\\nviolates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth\\n\\n 7\\nAmendment rights, including, inter alia, substantive due process and the\\n\\nfundamental right to travel.\\n\\n The crux of Plaintiffs’ case is that new facts related to the acceptance of\\n\\nmedical marijuana treatment regimens and the federal government’s own\\n\\ninvolvement in medical marijuana research require a reexamination of\\n\\nmarijuana’s scheduling under the CSA. The complaint seeks declaratory relief,\\n\\nas well as an injunction restraining Defendants from enforcing the CSA with\\n\\nrespect to cannabis. In reply, Defendants moved to dismiss.\\n\\n After argument, the District Court granted the government’s motion and\\n\\ndismissed Plaintiffs’ suit. It further held that amending the complaint would be\\n\\nfutile. As a threshold matter, the Court determined that Plaintiffs had failed to\\n\\nexhaust their administrative remedies and that they did not qualify for an\\n\\nexception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’\\n\\narguments persuasive and deemed their claims to be either foreclosed by\\n\\nprecedent or without legal authority. The Court additionally held that CCA\\n\\nfailed to establish that it had standing to pursue its claim, since the relief it\\n\\nsought would not redress the injury its members had allegedly suffered. The\\n\\n 8\\nDistrict Court entered judgment on February 26, 2018, and this appeal timely\\n\\nfollowed.\\n\\n DISCUSSION\\n\\n We resolve this case without reaching most of Plaintiffs’ disparate\\n\\narguments. As the District Court correctly observed, Plaintiffs challenge the\\n\\ncurrent classification of marijuana as a Schedule I substance under the CSA but\\n\\ndid not first bring this challenge to the agency that has the authority to\\n\\nreschedule marijuana, the DEA.3 Although the CSA does not expressly mandate\\n\\nthe exhaustion of administrative remedies, our precedents indicate that it is\\n\\ngenerally to be required as a prudential rule of judicial administration. We agree\\n\\nwith the District Court that exhaustion was appropriate here. But in light of the\\n\\nallegedly precarious situation of several of the Plaintiffs, which at this stage of\\n\\n\\n\\n\\n3The CSA places in the Attorney General the power to schedule, reschedule, or\\ndeschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules\\ndelegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA\\nfurther requires that, before scheduling, rescheduling, or descheduling a drug, the\\nAttorney General “shall . . . request from the Secretary [of Health and Human Services]\\na scientific and medical evaluation[ of the drug], and [the Secretary’s]\\nrecommendations, as to whether such drug or other substance should be so controlled\\nor removed,” which “shall be binding on the Attorney General as to such scientific and\\nmedical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling\\ncan be initiated by the Attorney General, the Secretary of Health and Human Services,\\nor “on the petition of any interested party.” Id. § 811(a).\\n\\n 9\\nthe proceedings we must accept as true, and their argument that the\\n\\nadministrative process may not move quickly enough to afford them adequate\\n\\nrelief, we retain jurisdiction of the case in this panel, for the sole purpose of\\n\\ntaking whatever action might become appropriate should the DEA not act with\\n\\nadequate dispatch. We wish to make clear, however, that, in doing so, we\\n\\nexpress no view whatever on the merits of Plaintiffs’ case—that is, on whether\\n\\nmarijuana should be listed or not.\\n\\n Exhaustion of administrative remedies is appropriate here.\\n\\n The administrative state is a topic of much debate these days. See Gillian\\n\\nE. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The\\n\\nAdministrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists\\n\\nand scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.\\n\\nLynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip\\n\\nHamburger, Is Administrative Law Unlawful? (2014). Others understand it as a\\n\\ncentral part of our modern republic. See generally Stephen Skowronek, Building a\\n\\nNew American State: The Expansion of National Administrative Capacities, 1877‐1920\\n\\n(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost\\n\\nOne Hundred Years of American Administrative Law (2012) (tracing the roots of the\\n\\n 10\\nadministrative state back to the Founding). Regardless of one’s point of view, it\\n\\nremains at the moment a key part of our legal regime. The doctrines that\\n\\nregulate the relationship between courts and administrative agencies are thus of\\n\\nparticular importance. They attempt to reconcile the advantages of expertise,\\n\\nflexibility, and efficiency with the safeguards of government under law. See\\n\\nDaniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in\\n\\nAmerica, 1900‐1940 (2014).\\n\\n Exhaustion of administrative remedies is one such doctrine. It holds that\\n\\nfederal courts should refrain from adjudicating a controversy if the party\\n\\nbringing suit might obtain adequate relief through a proceeding before an\\n\\nadministrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one\\n\\nis entitled to judicial relief for a supposed or threatened injury until the\\n\\nprescribed administrative remedy has been exhausted.”) (internal quotation\\n\\nmarks and citations omitted). The duty to exhaust administrative remedies can\\n\\nspring from legislation or from judicial decision. “Where Congress specifically\\n\\nmandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144\\n\\n(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534\\n\\nU.S. 516 (2002). “But [even] where Congress has not clearly required\\n\\n 11\\nexhaustion,” a court may still impose it as an act of “sound judicial discretion.”\\n\\nId.\\n\\n Before requiring exhaustion as a “rule of judicial administration,” Myers v.\\n\\nBethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look\\n\\nto “legislative purpose, which is of paramount importance.” Patsy v. Bd. of\\n\\nRegents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not\\n\\ndefer the exercise of jurisdiction under a federal statute unless it is consistent\\n\\nwith [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the\\n\\nstatutory requirement of exhaustion is not explicit, courts are guided by\\n\\ncongressional intent in determining whether application of the doctrine would\\n\\nbe consistent with the statutory scheme.”).\\n\\n Although the CSA does not mandate exhaustion of administrative\\n\\nremedies, we agree with the court below that exhaustion here is consistent with\\n\\ncongressional intent and is therefore appropriate. This judgment flows from our\\n\\nanalysis of the text and structure of the Act.\\n\\n The text of the CSA shows that Congress sought to favor administrative\\n\\ndecisionmaking. In several places, the words of the statute either presume or\\n\\ncreate an administrative process to review the classification of drugs under the\\n\\n 12\\nAct’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to\\n\\nschedule, reschedule, or deschedule drugs under the Act by rules “made on the\\n\\nrecord after opportunity for a hearing pursuant to the rulemaking procedures\\n\\nprescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,\\n\\n21 U.S.C. § 811(b) details the procedures the Attorney General should follow\\n\\nwhen scheduling, rescheduling, or descheduling drugs, including a duty to defer\\n\\nto the Secretary of Health and Human Services on certain medical and scientific\\n\\nmatters. And § 811(c) lists several factors the Attorney General must consider\\n\\nbefore initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐\\n\\n41.\\n\\n These provisions, among others, establish that Congress intended to\\n\\nimplement scheduling decisions under the CSA through an administrative\\n\\nprocess. Requiring would‐be plaintiffs to exhaust that process before turning to\\n\\nthe courts is consonant with that intent. Were plaintiffs able to go directly to\\n\\nfederal court to pursue reclassification, the language Congress devised to erect\\n\\nan administrative review process would be rendered a nullity. It follows that\\n\\nconstruing the Act to allow such behavior as a matter of course would violate a\\n\\n 13\\nbasic canon of statutory interpretation: that, if possible, every provision of a\\n\\nstatute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).\\n\\n The structure of the Act reinforces the language used and hence our\\n\\nconclusion that Congress wanted aggrieved parties to pursue reclassification\\n\\nthrough agencies, and not, in the first instance, through the federal courts. The\\n\\nCSA relies on an administrative process to operate effectively. When Congress\\n\\nenacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.\\n\\nSee Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52\\n\\n(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).\\n\\nBut the statute contemplated that these initial lists would be regularly revised\\n\\nand updated by the Attorney General, in consultation with the Secretary of\\n\\nHealth and Human Services, and that this would be done according to a specific\\n\\nprocedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus\\n\\nincorporates an administrative process into its structure. Indeed, its logic and\\n\\ndesign depend on administration and agency actions to realize its aims. Not to\\n\\nrequire exhaustion in the ordinary case would therefore undermine the text and\\n\\nstructure of the CSA.\\n\\n 14\\n In addition, requiring exhaustion is eminently sensible here. The Supreme\\n\\nCourt has told us that exhaustion furthers two important goals. First, it\\n\\n“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By\\n\\n“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”\\n\\nexhaustion recognizes “that agencies . . . have primary responsibility for the\\n\\nprograms that Congress has charged them to administer.” Id. Second,\\n\\nexhaustion “promotes judicial efficiency” by giving an administrative agency a\\n\\nchance to resolve a dispute, thus either rendering controversies moot or\\n\\n“produc[ing] a useful record for subsequent judicial consideration.” Id.\\n\\n Both purposes are advanced by requiring exhaustion in the instant case.\\n\\nThe Supreme Court has recognized that protecting agency authority is a\\n\\nparticularly compelling aim where “the agency proceedings in question allow\\n\\nthe agency to apply its special expertise.” Id. (citing McKart v. United States, 395\\n\\nU.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,\\n\\nthe question raised by Plaintiffs’ suit is whether developments in medical\\n\\nresearch and government practice should lead to the reclassification of\\n\\nmarijuana. This is precisely the kind of question that calls for the application of\\n\\nspecial knowledge. Exhaustion here “protect[s] administrative agency\\n\\n 15\\nauthority” by leaving this decision in the first instance to the specialists at the\\n\\nDEA and the Department of Health and Human Services. Id.\\n\\n Administrative exhaustion will also promote judicial efficiency in the ways\\n\\nidentified by the Supreme Court. It is conceivable that, in response to a petition\\n\\nfrom Plaintiffs along the lines advanced before us now, the DEA would\\n\\nreschedule marijuana, rendering the current case moot. And if the DEA did not,\\n\\nthe administrative process would generate a comprehensive record that would\\n\\naid in eventual judicial review. The Supreme Court has observed that the\\n\\ncreation of such a record can be “especially” beneficial “in a complex or technical\\n\\nfactual context,” id., which is the context involved in the case at bar. Accord\\n\\nShenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New\\n\\nYork v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).\\n\\n Moreover, we think that the kinds of arguments Plaintiffs advance make\\n\\nthis case well suited to administrative evaluation and inappropriate for federal\\n\\ncourt determination in the first instance. Plaintiffs do not contend that a decisive\\n\\nevent or singular discovery has rendered the previous classification of marijuana\\n\\nunder the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our\\n\\nunderstanding of the uses and dangers of marijuana warrants a change in\\n\\n 16\\nmarijuana’s classification. This argument raises a complex policy question:\\n\\nwhether the extant regulatory regime continues to advance the CSA’s goals in\\n\\nlight of the current state of our knowledge about the drug. It is possible that the\\n\\ncurrent law, though rational once, is now heading towards irrationality; it may\\n\\neven conceivably be that it has gotten there already. Courts are not especially\\n\\ngood at dealing with situations of this sort by themselves. In such circumstances,\\n\\ndialogue between courts and other law‐defining institutions, like agencies, often\\n\\nworks best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,\\n\\nJ., concurring).\\n\\n A sensible response to our evolving understanding about the effects of\\n\\nmarijuana might require creating new policies just as much as changing old ones.\\n\\nThis kind of constructive governmental work, mixing adjudication and program‐\\n\\ndesign, creating policy through the balancing of competing legitimate interests, is\\n\\nnot generally best accomplished by federal courts on their own; it is, however,\\n\\nthe stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative\\n\\nProcess (1938). Assuming, of course, that one can get the administrative agency\\n\\nto act.\\n\\n 17\\n For the foregoing reasons, requiring exhaustion is appropriate in the\\n\\ninstant case. Although not mandated by Congress, it is consistent with\\n\\ncongressional intent, as manifested in the CSA’s text and structure. And it\\n\\nadvances the goals that the Supreme Court has announced the doctrine serves.\\n\\nThe District Court’s decision to require exhaustion here was therefore correct.\\n\\n None of the recognized exceptions to the doctrine govern this case at this\\n time.\\n\\n Even where exhaustion is seemingly mandated by statute or decisional\\n\\nlaw, the requirement is not absolute. The Supreme Court itself has recognized\\n\\nexceptions to the exhaustion requirement under “three broad sets of\\n\\ncircumstances.” McCarthy, 503 U.S. at 146.\\n\\n First, exhaustion may be unnecessary where it would be futile, either\\n\\nbecause agency decisionmakers are biased or because the agency has already\\n\\ndetermined the issue. Id. at 148. It does not appear, however, that this futility\\n\\nexception currently applies here. Plaintiffs cite to various public statements by\\n\\nformer Attorney General Jefferson Beauregard Sessions III and former Acting\\n\\nAdministrator of the DEA Charles Philip Rosenberg to suggest that the\\n\\nadministrative process would be biased against them. But Plaintiffs’ evidence,\\n\\neven if given the interpretation they suggest, does not qualify them for the\\n\\n 18\\nexception, since the public statements relied on do not implicate the relevant\\n\\ndecisionmaker. Neither Sessions nor Rosenberg remains part of the review\\n\\nprocess. Nor, indeed, would they have been the relevant decisionmakers at the\\n\\ntime Plaintiffs initiated their suit. On the medical and scientific claims central to\\n\\nPlaintiffs’ argument, it is the opinion of the Secretary of Health and Human\\n\\nServices that matters, not the judgment of the Attorney General or the head of\\n\\nthe DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the\\n\\nSecretary to the Attorney General shall be binding on the Attorney General as to\\n\\n[the] scientific and medical” evaluation of substances considered for scheduling).\\n\\nPlaintiffs make no plausible allegations of bias on the part of the Secretary.\\n\\nFutility on account of bias has, therefore, not been adequately alleged.\\n\\n The Supreme Court has further stated that exhaustion may be unnecessary\\n\\nwhere the administrative process would be incapable of granting adequate relief.\\n\\nSee McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the\\n\\nmoment. Although Plaintiffs style their claims in many different ways, the\\n\\ngravamen of their argument is that marijuana should not be classified as a\\n\\nSchedule I substance under the CSA. Were a court to agree, the remedy would\\n\\nbe to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy\\n\\n 19\\nis not available through the administrative process. It is precisely the remedy\\n\\nprovided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently\\n\\nentitled to bypass exhaustion under this second exception either.\\n\\n Finally, exhaustion may be unnecessary where pursuing agency review\\n\\nwould subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In\\n\\nparticular, “an unreasonable or indefinite timeframe for administrative action”\\n\\nmay sufficiently prejudice plaintiffs to justify a federal court in taking a case\\n\\nprior to the complete exhaustion of administrative remedies. Id. at 147. Not\\n\\nevery delay will be sufficiently severe to justify waiver, however. Although, in\\n\\nmost cases, “respondents would clearly prefer an immediate appeal . . . rather\\n\\nthan the often lengthy administrative review process,” a mere preference for\\n\\nspeedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).\\n\\n“[T]hreatened or impending irreparable injury flowing from delay incident to\\n\\nfollowing the prescribed [administrative] procedure” militates in favor of\\n\\nwaiving exhaustion, but only if there is a “strong showing . . . both [of] the\\n\\ninadequacy of the prescribed procedure and of impending harm.” Aircraft &\\n\\nDiesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).\\n\\n 20\\n Despite the apparently dire situation of some of the Plaintiffs, they do not\\n\\nyet meet the requirement for this exception to the exhaustion requirement. In\\n\\npoint of fact, the existing classificatory scheme has not prevented Plaintiffs\\n\\nBortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.\\n\\nNor have Plaintiffs otherwise explained how pursuing agency review would\\n\\nsubject them to an additional “irreparable injury flowing from delay incident” to\\n\\nthe administrative process itself. Id. at 773. Accordingly, despite their\\n\\nconcededly difficult position, Plaintiffs are not currently entitled to bypass\\n\\nagency review.\\n\\n United States v. Kiffer does not require that we waive exhaustion here at\\n the moment.\\n\\n The exhaustion requirement under the CSA is, however, prudential, not\\n\\njurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created\\n\\nadministrative rule, applied by courts in their discretion.\\n\\n This explains why this Court has, on at least one previous occasion,\\n\\nconsidered a challenge to the scheduling of marijuana under the CSA without\\n\\nrequiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That\\n\\ncase is readily distinguishable, however, and its holding does not mean that\\n\\nexhaustion should not be required in the current case at this time. The Kiffer\\n\\n 21\\nCourt began by observing that “timely and successful use of th[e] administrative\\n\\n[process] would have obtained for [the] appellants [in that case] the very relief\\n\\nthey seek from us—a declaration either that mari[j]uana should not be subject to\\n\\nthe [CSA] or that it should be covered only in another schedule.” Id. at 351. The\\n\\nCourt began, then, with the assumption that exhaustion did apply. It waived the\\n\\nnormal requirement only because of two factors that do not obtain in the instant\\n\\ncase: first, because the “application of the . . . doctrine [of exhaustion] to criminal\\n\\ncases is generally not favored,” id. at 352, and, second and more significantly,\\n\\nbecause, at the time Kiffer was heard, the federal government had taken the\\n\\nposition that it did not have the power to re‐ or deschedule marijuana at all, as a\\n\\nresult of foreign treaty commitments, id. at 351. Under those circumstances,\\n\\nwhere “there [wa]s some doubt whether appellants in fact [had] an\\n\\nadministrative remedy,” the Court declined to require exhaustion. Id. The\\n\\ninstant case is different. It is, of course, civil. And, as the D.C. Circuit has since\\n\\nheld, foreign treaty commitments have not divested the Attorney General of the\\n\\npower to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law\\n\\n(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s\\n\\nresult is therefore not controlling. In fact, the case’s logic reinforces our\\n\\n 22\\nconclusion that Plaintiffs should attempt to exhaust their administrative\\n\\nremedies before seeking relief from us. But Kiffer also makes clear that, when\\n\\nappropriate, we do have the power to act even if the administrative agency has\\n\\nnot.\\n\\n Strong interests compel this Court to retain jurisdiction.\\n\\n This case reaches us as an appeal from a ruling on a motion to dismiss.\\n\\nUnder settled principles of adjudication, we must, therefore, accept the well‐\\n\\npleaded facts in the complaint as true. Taking the facts as alleged, and,\\n\\naccordingly, taking the supposed benefits some Plaintiffs have experienced from\\n\\nmarijuana as true as well, we—like the District Court below—are struck by the\\n\\ntransformative effects this drug has assertedly had on some Plaintiffs’ lives. As a\\n\\nresult, we are troubled by the uncertainty under which Plaintiffs must currently\\n\\nlive. Plaintiffs claim that marijuana has extended their lives, cured seizures, and\\n\\nmade pain manageable. If true, these are no small things. Plaintiffs should not\\n\\nbe required to live indefinitely with uncertainty about their access to allegedly\\n\\nlife‐saving medication or live in fear that pursuing such medical treatment may\\n\\nsubject them or their loved ones to devastating consequences.\\n\\n 23\\n Plaintiffs argue that the administrative process will prolong their ordeal\\n\\nintolerably. And their argument is not without force. Plaintiffs document that\\n\\nthe average delay in deciding petitions to reclassify drugs under the CSA is\\n\\napproximately nine years. Such long delays cast doubt on the appropriateness of\\n\\nrequiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).\\n\\nAnd where, as here, health is involved, delay can be even more problematic. See\\n\\nAbbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay\\n\\nattending exhaustion would subject claimants to deteriorating health . . . then\\n\\nwaiver [of exhaustion] may be appropriate”).\\n\\n Indeed, on the alleged facts, which, we repeat, we must for now take as\\n\\ntrue, undue delay by the agency might make applicable each of the three\\n\\nexceptions to exhaustion that the Supreme Court has recognized and which we\\n\\ndiscussed earlier. Specifically, undue delay, if it in fact results in catastrophic\\n\\nhealth consequences, could make exhaustion futile. Moreover, the relief the\\n\\nagency might provide could, because of undue delay, become inadequate. And\\n\\nfinally, and obviously, Plaintiffs could be unduly prejudiced by such delay.\\n\\n To be clear, Plaintiffs have not alleged that they will necessarily suffer\\n\\nsufficient harm as a result of the time it would take to pursue the administrative\\n\\n 24\\nprocess to justify an exception to exhaustion now. Plaintiffs do, however,\\n\\nplausibly raise the specter of delay and plausibly suggest that the delay could\\n\\nbecome problematic. And although agencies, like legislatures, are often the best\\n\\ndecisionmakers, this is so only when they actually do decide.\\n\\n Courts have, moreover, on occasion deemed it proper to encourage\\n\\nprompt decisionmaking. Thus, where agencies have a history of dilatory\\n\\nproceedings, federal courts have sometimes retained jurisdiction of related cases\\n\\nto facilitate swift review. In Telecommunications Research and Action Center v.\\n\\nF.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case\\n\\nin part because of the failure of a federal agency to act with adequate speed. See\\n\\n750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify\\n\\nmandamus,” the court stated, they were significant enough that it should retain\\n\\njurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide\\n\\nAction Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)\\n\\n(observing that “it is well established that we may retain jurisdiction over [a case]\\n\\n 25\\nto ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.\\n\\n1995) (Calabresi, J., concurring).4\\n\\n We think it possible that future action by us may become appropriate here.\\n\\nPlaintiffs have not asked for—and we do not even consider issuing—a writ of\\n\\nmandamus to force the DEA to act. But we exercise our discretion to keep\\n\\njurisdiction of the case in this panel, to take whatever action may become\\n\\nappropriate if Plaintiffs seek administrative review and the DEA fails to act\\n\\npromptly. And we note that, under the unusual health‐related circumstances of\\n\\nthis case, what has counted as appropriate speed in the past may not count as\\n\\nappropriate speed here.\\n\\n In doing this, we specify that we are not retaining jurisdiction to review\\n\\nthe actions the agency may take. Jurisdiction over those may well lie solely in\\n\\nanother circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the\\n\\nPlaintiffs seek agency review and so inform us within six months, we will affirm\\n\\nthe District Court’s judgment dismissing this case. (And if only some Plaintiffs\\n\\n\\n\\n4Some courts in other jurisdictions have gone even further in asserting a role for courts\\nto ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d\\n513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido\\nCalabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to\\nmake clear that we make no such assertion of power in the federal courts generally.\\n\\n 26\\nseek agency review, we will dismiss the complaint as to those who do not.) But\\n\\nif Plaintiffs do seek agency review, and the agency fails to act with alacrity,\\n\\nPlaintiffs may return directly to us, under our retained jurisdiction.5\\n\\n To be clear, we repeat that this case remains in our purview only to the\\n\\nextent that the agency does not respond to Plaintiffs with adequate, if deliberate,\\n\\nspeed. In other words, we retain jurisdiction exclusively for the purpose of\\n\\ninducing the agency to act promptly.\\n\\n CONCLUSION\\n\\n Because Plaintiffs failed to exhaust their administrative remedies and do\\n\\nnot at this time qualify for an exception to the exhaustion doctrine, the District\\n\\nCourt did not err in requiring Plaintiffs to bring their claims to the relevant\\n\\nagency first. But, in light of the unusual circumstances of this case, we hold the\\n\\ncase in abeyance and retain jurisdiction in this panel to take whatever further\\n\\n\\n\\n\\n5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are\\nnot implausible, we must take them as true at this stage of the litigation. Should the\\nagency fail to act, we would, before proceeding further, however, have to look into the\\nallegations more deeply. Accordingly, should the case return to us, it may be\\nappropriate to remand to the District Court for further factfinding. At that time, if\\nPlaintiffs have not at least raised a disputed issue of material fact as to the veracity of\\ntheir allegations, summary judgment against them would be appropriate.\\n\\n 27\\naction might become appropriate should Plaintiffs initiate administrative review\\n\\nand the administrative process fail to operate with adequate dispatch.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1997,"cells":{"id":{"kind":"number","value":4624847,"string":"4,624,847"},"name":{"kind":"string","value":"AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY, Central Intelligence Agency, United States Department of Defense, United States Department of Justice, United States Department of State, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Am. Civil Liberties Union v. Nat'l Sec. Agency"},"decision_date":{"kind":"string","value":"2019-05-30"},"docket_number":{"kind":"string","value":"17-3399-cv; August Term 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Cabranes, Livingston, Schofield\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge\", \"type\": \"010combined\", \"text\": \"17‐3399‐cv\\nAm. Civil Liberties Union v. Nat’l Sec. Agency\\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2018\\n\\n No. 17‐3399‐cv\\n\\n AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION\\n FOUNDATION,\\n Plaintiffs‐Appellants,\\n\\n v.\\n\\n NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY,\\n UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES\\n DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE,\\n Defendants‐Appellees.\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Southern District of New York\\n\\n\\n\\n ARGUED: DECEMBER 4, 2018\\n DECIDED: MAY 30, 2019\\n\\fBefore: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District\\nJudge.*\\n\\n\\n\\n\\n Plaintiffs‐Appellants, the American Civil Liberties Union and\\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\\nrequested documents concerning the legal authority for certain\\nnational security programs from Defendants‐Appellees, several\\nfederal agencies (jointly, “the Government”). After exhausting\\nadministrative remedies, the ACLU filed suit under the Freedom of\\nInformation Act (“FOIA”), requesting that the District Court compel\\ndisclosure. To defend the decision to withhold several documents, the\\nGovernment invoked specific statutory exemptions, including FOIA\\nExemption 5, which protects from disclosure attorney‐client and\\ndeliberative communications. The District Court (Kimba M. Wood,\\nJudge) granted summary judgment in the Government’s favor, holding\\nthat the agencies properly withheld the documents under FOIA. On\\nappeal, the ACLU argues that Exemption 5 does not apply because the\\nGovernment adopted or incorporated the disputed documents when\\nit “relied on” the legal advice contained therein. We conclude that\\nunder Exemption 5, an agency (1) “adopts” a previously privileged\\ndocument where the agency’s statements or behavior indicate that the\\nagency treats the document as binding authority, and (2)\\n“incorporates” a previously privileged document “by reference”\\n\\n\\n Judge Lorna G. Schofield, of the United States District Court for the\\n *\\n\\nSouthern District of New York, sitting by designation.\\n\\n\\n\\n\\n 2\\n\\fwhere a formal agency opinion or decision explicitly relies on that\\ndocument and its reasoning. We find no such adoption or\\nincorporation to have occurred in this case. Accordingly, we affirm the\\njudgment of the District Court.\\n\\n _______\\n\\n ASHLEY GORSKI (Patrick Toomey, American\\n Civil Liberties Union Foundation, New York,\\n NY; Hannah Bloch‐Wehba, David Schulz,\\n Sebastian Brady, Diana Lee, Paulina Perlin,\\n Media Freedom and Information Access\\n Clinic, Abrams Institute, Yale Law School,\\n New Haven, CT, on the brief), American Civil\\n Liberties Union Foundation, New York, NY,\\n for Plaintiffs‐Appellants.\\n\\n JEAN‐DAVID BARNEA (David S. Jones and\\n Benjamin H. Torrance, Assistant United\\n States Attorneys, on the brief), Assistant\\n United States Attorney, for Geoffrey S.\\n Berman, United States Attorney for the\\n Southern District of New York, New York,\\n NY, for Defendants‐Appellees.\\n\\n ________\\n\\n\\n\\n\\n 3\\n\\f JOSÉ A. CABRANES, Circuit Judge:\\n\\n The American people have the right to know the laws and\\npolicies that bind our government and its agencies. At the same time,\\ngovernment officials must be able to receive confidential legal advice\\nand deliberate frankly. Sometimes, these principles appear\\ncontradictory. We can, however, accommodate both by carefully\\ndefining the boundary between law, on the one hand, and advice, on\\nthe other. Put simply, law binds. Accordingly, when inquiring whether\\na document constitutes an agency’s “effective law and policy” or\\nwhether it merely contains legal or policy advice, courts should inquire\\nwhether officials regarded the document as binding. This inquiry\\nallows courts to distinguish between advice, which may be kept secret,\\nand a government’s effective law and policy, to which a strong\\npresumption of public access attaches.\\n\\n Plaintiffs‐Appellants, the American Civil Liberties Union and\\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\\nrequested documents concerning the legal authority for certain\\nnational security programs from Defendants‐Appellees, several\\nfederal agencies (jointly, “the Government”). After exhausting\\nadministrative remedies, the ACLU filed suit under the Freedom of\\nInformation Act (“FOIA”), requesting that the District Court compel\\ndisclosure. To defend the withholdings, the Government invoked\\nspecific statutory exemptions, including FOIA Exemption 5, which\\nprotects from disclosure attorney‐client and deliberative\\ncommunications. The District Court (Kimba M. Wood, Judge) granted\\nsummary judgment in the Government’s favor, holding that the\\n\\n\\n\\n\\n 4\\n\\fagencies properly withheld the documents under FOIA. On appeal,\\nthe ACLU argues that Exemption 5 does not apply because the\\nGovernment adopted or incorporated the disputed documents when\\nit “relied on” the legal advice contained therein. We conclude that\\nunder Exemption 5, an agency (1) “adopts” a previously privileged\\ndocument where the agency’s statements or behavior indicate that the\\nagency treats the document as binding authority, and (2)\\n“incorporates” a previously privileged document “by reference”\\nwhere a formal agency opinion or decision explicitly relies on that\\ndocument and its reasoning. We find no such adoption or\\nincorporation to have occurred in this case. Accordingly, we affirm the\\njudgment of the District Court.\\n\\n I. BACKGROUND\\n\\n A. Executive Order 12,333 and the ACLU’s FOIA Request\\n\\n On December 4, 1981, President Reagan issued Executive Order\\n12,333 (“EO 12,333”), entitled “United States Intelligence Activities.”1\\nThe order sought to regulate the “effective conduct of United States\\nintelligence activities” and “protect[ ] . . . constitutional rights.”2\\nAmended numerous times over the last four decades, EO 12,333 has\\nlong served as a “principal Executive Branch authority for foreign\\nintelligence activities.”3 Today, it remains “one of the primary\\n\\n 1 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981).\\n 2 Id.\\n 3President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty\\nand Security in a Changing World: Report and Recommendations of the Presidentʹs\\n\\n\\n\\n\\n 5\\n\\fauthorities that allow agencies of the intelligence community . . . to\\ngather foreign intelligence.”4\\n\\n In the wake of the terrorist attacks of September 11, 2001 and the\\nsubsequent expansion of intelligence operations, EO 12,333 became\\nthe subject of renewed public attention. On May 13, 2013, the ACLU\\nsubmitted requests to several federal agencies “seeking the release of\\nrecords that describe the government’s understanding of its\\nsurveillance authority under [EO] 12,333” and “the rules that regulate\\nthe government’s acquisition, retention, use, and dissemination of the\\ncommunications of Americans swept up in that surveillance.”5 In\\nrequesting the documents, the ACLU invoked FOIA, a federal statute\\nenacted in 1966 that facilitates the public release of most government\\nrecords.6\\n\\n The agencies resisted disclosing the requested records. On\\nDecember 30, 2013, after exhausting administrative remedies, the\\n\\nReview Grp. on Intelligence and Commcʹns Techs 69 (Dec. 12, 2013),\\nhttps://obamawhitehouse.archives.gov/sites/default/files/docs/2013‐12‐\\n12_rg_final_report.pdf.\\n\\n Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 09198\\n 4\\n\\n(KMW)(JCF), 2017 WL 1155910, at *1 (S.D.N.Y. Mar. 27, 2017) (“ACLU I”).\\n 5 Joint Appendix (“J.A.”) 24. The ACLU submitted the requests to the\\nCentral Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau\\nof Investigation, the National Security Agency, the United States Department of\\nState, the National Security Division, and the Office of Legal Counsel. See ACLU I,\\n2017 WL 1155910, at *2.\\n 6See 5 U.S.C. § 552; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132,\\n136 (1975).\\n\\n\\n\\n\\n 6\\n\\fACLU filed suit under FOIA’s cause‐of‐action provision, seeking to\\ncompel the release of the documents.7\\n\\n During the litigation, the Government voluntarily produced\\nhundreds of pages of responsive material. Nevertheless, the\\nGovernment continued to withhold certain documents, claiming they\\nwere exempt from disclosure under specific statutory exemptions.\\n\\n In early 2016, the parties cross‐moved for summary judgment\\nregarding the lawfulness of the Government’s decision to withhold the\\ndocuments. On March 27, 2017, the District Court denied the ACLU’s\\nmotion in full, and granted the Government’s motion in part,\\napproving the Government’s decision to withhold most documents,\\nbut requiring more detailed justifications for several remaining\\ndocuments. The District Court then reviewed supplementary briefing\\nfrom both sides on renewed cross‐motions for summary judgment\\nwith respect to the remaining documents. On August 17, 2017, the\\nDistrict Court granted the Government’s renewed motion for\\n\\n\\n\\n\\n 7 Under FOIA, requesting parties may petition a district court “to enjoin\\nthe agency from withholding agency records and to order the production of any\\nagency records improperly withheld from the complainant.” 5 U.S.C.\\n§ 552(a)(4)(B). District courts must review an agency’s decision to withhold\\nrecords de novo to ensure that the decision complies with FOIA’s substantive\\nrequirements. Id. The agency, meanwhile, bears the burden of “sustain[ing] its\\naction”—i.e., the decision to withhold. Id.\\n\\n\\n\\n\\n 7\\n\\fsummary judgment and denied the ACLU’s cross‐motion.8 Judgment\\nwas entered on August 22, 2017.\\n\\n B. The Contested Documents\\n\\n On appeal, the ACLU contests the District Court’s rulings with\\nrespect to seven documents. 9\\n\\n OLC 10. The first document, “OLC 10,” is a 108‐page\\nmemorandum, dated May 6, 2004, from the Assistant Attorney\\nGeneral for the Office of Legal Counsel (“OLC”), Jack L. Goldsmith,\\nIII, to Attorney General Alberto Gonzales. The general functions of the\\nOLC include “assisting the Attorney General in the performance of his\\nfunctions as legal adviser to the President” in part by “advising as to\\nthe [ ] form and legality” of Executive orders and actions.10 The OLC\\nmemorandum, titled “Re: Review of the Legality of the STELLAR\\nWIND Program,” examines a “highly classified and strictly\\n\\n 8 See Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\\n(JCF), 2017 WL 6387731, at *1 (S.D.N.Y. Aug. 17, 2017) (“ACLU II”).\\n 9 Initially, the ACLU also challenged the decision to withhold an eighth\\ndocument, “OLC 8.” While this appeal was pending, however, the Government\\nreprocessed and released most of that document. Accordingly, the ACLU is “no\\nlonger seeking disclosure of that memorandum.” Reply Br. Appellants 3 n.1.\\n 10 28 C.F.R. § 0.25; see also Citizens for Responsibility & Ethics in Washington\\nv. U.S. Dep’t of Justice, 846 F.3d 1235, 1238 (D.C. Cir. 2017) (discussing the role of\\nOLC generally); Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting)\\n(explaining that the role of Assistant Attorney General for OLC is “a post that has\\ntraditionally had responsibility for providing legal advice to the President (subject\\nto approval of the Attorney General)”). Justice Scalia, like Chief Justice Rehnquist\\nbefore him, served in this role.\\n\\n\\n\\n\\n 8\\n\\fcompartmented program of electronic surveillance” authorized by\\nPresident George W. Bush in response to the attacks of September 11,\\n2001.11 The memorandum reviews the program’s history and analyzes\\nits legality under EO 12,333, applicable statutes, and the United States\\nConstitution.12\\n\\n The District Court concluded that OLC 10 is exempt from\\ndisclosure under FOIA Exemption 5 because the document is both an\\nattorney‐client communication and a deliberative, pre‐decisional\\ngovernment memorandum.\\n\\n Intelligence Program Documents. The remaining six documents13\\neach contains legal advice from Department of Justice attorneys\\nconcerning “[National Security Agency (“NSA”)] programs or other\\nintelligence activities.”14\\n\\n According to a sworn declaration from a senior NSA official,\\nfive of these six documents (NSD 12, 13, 14, and 33, and NSA 11)\\nconcern “particular intelligence sources, and related methods used to\\n\\n\\n\\n\\n 11 J.A. 276‐77.\\n 12 See id. at 276‐351.\\n 13 The documents are identified individually as NSA 11 and NSD 12, 13,\\n14, 33, and 49. Collectively, we refer to them as “the intelligence program\\ndocuments.”\\n 14 ACLU I, 2017 WL 1155910, at *14 (NSA 11); id. at *12 (NSD 12, 13, 14, 33,\\nand 49).\\n\\n\\n\\n\\n 9\\n\\fcollect and process foreign communications.”15 The disclosure of these\\ndocuments “would [therefore] demonstrate the capabilities and\\nlimitations” of the United States’ signals intelligence systems.16\\nSimilarly, disclosure of the sixth document (NSD 49) would “tend[ ] to\\nidentify the targets of intelligence‐gathering efforts, reveal the specific\\ncollection techniques and methods employed, and contain details\\nconcerning the locations and timing of that collection.”17\\n\\n The District Court held that FOIA exempts these six intelligence\\nprogram documents from disclosure because they contain classified\\nand sensitive national security information.18\\n\\n C. The Government’s Public Statements\\n\\n It is undisputed that the contested documents have never been\\nreleased in unredacted form. The Government has, however,\\ndiscussed similar subject matter in several public statements. A central\\nissue on appeal is whether these public statements—delivered over a\\nperiod of 13 years—undermine the Government’s claims of attorney‐\\nclient and deliberative process privilege with respect to OLC 10.\\n\\n\\n\\n 15J.A. 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\\nPolicy and Records).\\n 16 Id. at 154 ¶ 39.\\n 17Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\\n(JCF), Dkt. No. 60 at 15 ¶ 16 (Declaration of Antoinette B. Shiner, Information\\nReview Officer for the Litigation Information Review Office, CIA).\\n 18 ACLU II, 2017 WL 6387731, at *6.\\n\\n\\n\\n\\n 10\\n\\f First, in a December 19, 2005 White House press briefing,\\nAttorney General Gonzales discussed the “legal underpinnings” of the\\nStellar Wind program.19 In that briefing, Gonzales explained that the\\nprogram was authorized by Congress’s 2001 Authorization for the Use\\nof Military Force (“AUMF”), and was in any event a legal exercise of\\nthe President’s inherent constitutional authority as Commander‐in‐\\nChief. Gonzales did not mention OLC opinions in his prepared\\nremarks, and when asked about the possibility of releasing an OLC\\nopinion, responded, “Iʹm not confirming the existence of opinions or\\nthe non‐existence of opinions. I’ve offered up today our legal analysis\\nof the authorities of this President.”20\\n\\n Second, on January 19, 2006, the Department of Justice\\ntransmitted to Congress a “White Paper” entitled “Legal Authorities\\nSupporting the Activities of the National Security Agency Described\\nby the President.”21 According to an accompanying letter, the\\ndocument was “prepared by the Department of Justice to provide a\\ndetailed analysis of the legal basis” for certain NSA activities initiated\\n\\n\\n 19 Office of the Press Sec’y, Press Briefing by Attorney General Alberto\\nGonzales and General Michael Hayden, Principal Deputy Director for National\\nIntelligence, WHITE HOUSE, (Dec. 19, 2005), https://georgewbush‐\\nwhitehouse.archives.gov/news/releases/2005/12/20051219‐1.html (“2005 Press\\nBriefing”).\\n 20 Id.\\n 21 Legal Authorities Supporting the Activities of the National Security Agency\\nDescribed by the President, DEP’T OF JUST. (Jan. 19, 2006),\\nhttps://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op\\n‐olc‐v030‐p0001.pdf (“White Paper”).\\n\\n\\n\\n\\n 11\\n\\fin the aftermath of the September 11, 2001 attacks.22 The White Paper\\nbriefly describes NSA surveillance activities and discusses their\\nlegality in light of the ongoing threat from Al‐Qaeda and pursuant to\\nstatutory authorities and the United States Constitution. The paper\\ncontains “[m]uch of the legal reasoning” first articulated in OLC 10.23\\n\\n Third, on February 6, 2006, Attorney General Gonzales stated,\\nduring a hearing before the Senate Judiciary Committee, that he\\n“agreed with the [Office of Legal Counsel’s] legal analysis” concerning\\nthe Stellar Wind program.24\\n\\n Fourth, on July 10, 2009, the Inspectors General of five agencies\\ncompleted and submitted a classified 747‐page comprehensive report\\nconcerning the Stellar Wind program (“the Joint IG Report”) to several\\ncommittees of Congress.25 At the same time, the Inspectors General\\n\\n\\n\\n 22 Id. at 1.\\n 23 Offices of Inspectors General, Report on the President’s Surveillance\\nProgram, Vol. 1 at 49 (July 10, 2009), https://oig.justice.gov/reports/2015/PSP‐09‐18‐\\n15‐full.pdf (“Joint IG Report”).\\n 24 Wartime Executive Power and the National Security Agency’s Surveillance\\nAuthority: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 55 (2006),\\navailable at 2006 WL 270364 (“2006 Hearing”).\\n 25 The report was prepared by the Inspectors General of the Department of\\nJustice, Department of Defense, Office of the Director of National Intelligence,\\nCIA, and NSA. It was delivered to the Senate Select Committee on Intelligence,\\nthe Senate Committee on the Judiciary, the House Permanent Select Committee\\non Intelligence, and the House Committee on the Judiciary. See Joint IG Report\\nnote 23, ante, at iii.\\n\\n\\n\\n\\n 12\\n\\falso publicly released a shorter, unclassified version of the report;26 the\\nGovernment did not declassify and release a redacted version of the\\nfull report until April 2015.27 The full report discusses the drafting of\\nOLC 10 under the heading “A New Legal Basis for the Program Is\\nAdopted.”28\\n\\n Fifth, in February 2016, the Government made public a\\npreviously classified letter (“OLC 9”) from Deputy Assistant Attorney\\nGeneral John C. Yoo to Judge Colleen Kollar‐Kotelly, then Presiding\\nJudge of the Foreign Intelligence Surveillance Court. 29 The letter,\\ndated May 17, 2002, “discusses the President’s power to deploy\\nexpanded electronic surveillance techniques” and “outlines the legal\\njustifications for such surveillance.”30\\n\\n Finally, while this appeal was pending, the Government\\nreprocessed and released a less‐redacted version of an additional\\n\\n 26 See Offices of Inspectors General, Unclassified Report on the President’s\\nSurveillance Program (July 10, 2009), available at\\nhttps://oig.justice.gov/special/s0907.pdf.\\n 27IC on the Record Database: Results, OFF. OF THE DIRECTOR OF NAT’L\\nINTELLIGENCE, https://www.intelligence.gov/ic‐on‐the‐record‐database/advanced‐\\nsearch?keyword=&date=9&sdate=03%2F31%2F2015&edate=05%2F01%2F2015&t\\nopic=&catid=#results (indicating April 25, 2015 as the date of publication); see also\\nCharlie Savage, Government Releases Once‐Secret Report on Post‐9/11 Surveillance, N.\\nY. TIMES (April 24, 2015) available at\\nhttps://www.nytimes.com/interactive/2015/04/25/us/25stellarwind‐ig‐report.html.\\n 28 See Joint IG Report, note 23, ante, at 37‐39.\\n 29 J.A. 253‐54, 257.\\n 30 See id. at 393.\\n\\n\\n\\n\\n 13\\n\\fdocument, “OLC 8.” This document, a November 2, 2001\\nmemorandum written by Deputy Assistant Attorney General Yoo,\\nexplains, inter alia, “legal issues pertaining to surveillance under E.O\\n12333.”31\\n\\n II. DISCUSSION\\n\\n We review a district court’s grant of summary judgment in\\nFOIA litigation de novo.32\\n\\n In conducting our review, we first clarify the scope of FOIA and\\nits exemptions, as well as the concepts of “working law,” “adoption”\\nand “incorporation.” Applying these principles, we affirm the\\nconclusion of the District Court that OLC 10 is exempt from disclosure\\nunder FOIA Exemption 5. We similarly affirm its conclusion that the\\nsix intelligence program documents are exempt from disclosure under\\nFOIA Exemptions 1 and 3. Finally, we reject the ACLU’s request that\\nwe “order the re‐processing of the documents,” that is, compel the\\nagencies to once again review the contested documents to ensure that\\nonly privileged and undisclosed, classified information is redacted.33\\n\\n\\n\\n\\n 31 Id. at 259.\\n 32See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 112 (2d\\nCir. 2014) (“N.Y. Times I”); see also Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999)\\n(declining to “depart from a pure de novo standard”).\\n 33 Br. Appellants 47.\\n\\n\\n\\n\\n 14\\n\\f A. FOIA and its Exemptions\\n\\n Passed in 1966, FOIA was intended to “permit access to official\\ninformation long shielded unnecessarily from public view.”34 FOIA\\nthus establishes a default rule in favor of Government disclosure,\\nproviding that an “agency, upon any request for records which\\n(i) reasonably describes such records and (ii) is made in accordance\\nwith published rules . . . shall make the records promptly available to\\nany person.”35 As the Supreme Court has explained, “virtually every\\ndocument generated by an agency is available to the public in one form\\nor another, unless it falls within one of the [FOIA]’s nine\\nexemptions.”36 In accordance with FOIAʹs purposes, the statutory\\nexemptions are “narrowly construed.”37\\n\\n Our case concerns three of these exemptions: Exemption 1\\nexempts records that have been properly classified “in the interest of\\nnational defense or foreign policy.”38 Exemption 3 exempts records\\nthat a statute other than FOIA prohibits from disclosure.39 Finally,\\n\\n\\n\\n\\n 34 Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).\\n 35 5 U.S.C. § 552(a)(3)(A).\\n 36 Sears, 421 U.S. at 136.\\n 37F.B.I. v. Abramson, 456 U.S. 615, 630 (1982); see also Natʹl Council of La Raza\\nv. Depʹt of Justice, 411 F.3d 350, 356 (2d Cir. 2005).\\n 38 5 U.S.C. § 552(b)(1)(A).\\n 39 Id. § 552(b)(3).\\n\\n\\n\\n\\n 15\\n\\fExemption 5 exempts records that would be privileged in litigation.40\\nThe District Court upheld the redaction of OLC 10 under Exemption\\n5, and the decision to withhold the intelligence program documents\\nunder Exemptions 1 and 3. We review each holding in turn.\\n\\n B. OLC 10 and FOIA Exemption 5\\n\\n Exemption 5 exempts from FOIA’s disclosure requirements\\n“inter‐agency or intra‐agency memorandums [sic] or letters that\\nwould not be available by law to a party other than an agency in\\nlitigation with the agency.”41 This exemption “incorporate[s] into the\\nFOIA all the normal civil discovery privileges,”42 including\\n“traditional common law privileges against disclosure” such as “the\\nattorney‐client and deliberative process privileges.”43 Here, the\\nDistrict Court upheld the redaction of OLC 10 pursuant to both\\nprivileges.44 We agree.\\n\\n 1. The Attorney‐Client Privilege\\n\\n As we have explained in prior decisions, “[t]he attorney‐client\\nprivilege protects confidential communications between client and\\ncounsel made for the purpose of obtaining or providing legal\\n\\n\\n 40 Id. § 552(b)(5).\\n 41 Id.\\n 42 Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991).\\n 43 N.Y. Times I, 756 F.3d at 104.\\n 44 ACLU I, 2017 WL 1155910, at *10.\\n\\n\\n\\n\\n 16\\n\\fassistance.”45 The privilege functions to “encourage attorneys and\\ntheir clients to communicate fully and frankly and thereby to promote\\nbroader public interests in the observance of law and administration\\nof justice.”46\\n\\n In the context of legal advice to government officials, “the\\nprivilege furthers a culture in which consultation with government\\nlawyers is accepted as a normal, desirable, and even indispensable\\npart of conducting public business. Abrogating the privilege\\nundermines that culture and thereby impairs the public interest.”47\\nThe public interest in ensuring that government officials receive sound\\nlegal advice is at its apex when the programs about which advice is\\nsought are secret and unlikely to be subject to litigation. In such cases,\\nthe frank exchange between government officials and their attorneys\\nserves as a crucial—and maybe the only—safeguard in ensuring the\\nlegality of government action.\\n\\n The scope of the privilege follows directly from these purposes.\\nThe privilege protects “communications (1) between a client and his\\nor her attorney (2) that are intended to be, and in fact were, kept\\n\\n\\n\\n\\n 45 In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007).\\n 46 Id. (internal quotation marks omitted); see also Upjohn Co. v. United\\nStates, 449 U.S. 383, 389 (1981) (explaining that one purpose of the privilege is “to\\nencourage clients to make full disclosure to their attorneys” (internal quotation\\nmarks omitted)).\\n 47 In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).\\n\\n\\n\\n\\n 17\\n\\fconfidential (3) for the purpose of obtaining or providing legal\\nadvice.”48\\n\\n OLC 10 meets these requirements easily. First, as reflected in the\\nindex the Government provided to the ACLU, OLC 10 was prepared\\nby an OLC attorney (Assistant Attorney General Goldsmith) for an\\nExecutive Branch client (the Attorney General, and eventually, the\\nPresident).49 The document is thus a communication between an\\nattorney and a client.\\n\\n Second, the memorandum was written with the understanding\\nthat “OLC legal advice is generally kept confidential,”50 it was\\n“communicated in confidence,”51 and “none of [its redacted portions]\\nhave been previously publicly disclosed.”52 The redacted sections of\\nOLC 10 were thus intended to be, and actually were, kept confidential.\\n\\n And third, by its own description, OLC 10 is one in a series of\\nmemoranda which “advised” the Attorney General that certain\\npresidential actions “would satisfy relevant constitutional\\nstandards.”53 Moreover, as we have previously explained, OLC\\n\\n 48 United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Brennan\\nCtr. for Justice v. U.S. Depʹt of Justice, 697 F.3d 184, 207 (2d Cir. 2012).\\n 49 J.A. 259, 276‐77; see also note 10, ante (citing Morrison, 487 U.S. at 700).\\n 50 Id. at 244 ¶ 3 (Declaration of Paul P. Colborn, Special Counsel, OLC).\\n 51 Id. at 250 ¶ 19.\\n 52 Id. at 256 ¶ 34.\\n 53 Id. at 284.\\n\\n\\n\\n\\n 18\\n\\fmemoranda “provide, in their specific contexts, legal advice as to what\\na department or agency is permitted to do.”54 The communication thus\\nprovided legal assistance.55\\n\\n The ACLU does not seriously challenge this analysis. Instead, it\\nargues that while OLC 10 was initially protected by the attorney‐client\\nprivilege, the Government subsequently waived the privilege through\\n“official acknowledgments” and “public reliance.”56\\n\\n The ACLU’s assertion of a doctrine of waiver by “official\\nacknowledgment” reflects a basic misunderstanding of the attorney‐\\nclient privilege. This privilege protects confidential communications\\nbetween an attorney and a client. The “official acknowledgment”\\ndoctrine, however, precludes the Government from withholding\\n\\n\\n\\n\\n 54New York Times Co. v. U.S. Depʹt of Justice, 806 F.3d 682, 687 (2d Cir. 2015)\\n(“N.Y. Times II”) (internal quotation marks and emphasis omitted).\\n 55 That the Attorney General might have transmitted OLC 10 to the White\\nHouse does not change our analysis. As the OLC declarant explained, “[t]he\\nprincipal function of OLC is to assist the Attorney General in her role as legal\\nadviser to the President of the United States and to departments and agencies of\\nthe Executive Branch.” J.A. 244 ¶ 2; see also 28 C.F.R. § 0.25 (OLC advises as to the\\n“form and legality” of proposed Executive orders, proclamations and regulations\\n“prior to their transmission to the President.”). Accordingly, if OLC 10 was\\ntransmitted to the White House, then this transmission is also a communication\\nbetween an attorney (the Attorney General) and a client (the White House);\\nintended to be and kept confidential; and offered for the purpose of advising the\\nPresident of the law governing a proposed action. Id. at 277, 284.\\n 56 Br. Appellants 34‐35.\\n\\n\\n\\n\\n 19\\n\\finformation on the basis that it is classified after the Government has\\ndisclosed substantially the same information.57\\n\\n But such informational disclosures have no effect on whether a\\ncommunication is protected by the attorney‐client privilege.58 The\\nattorney‐client privilege “protects communications rather than\\ninformation.”59 We have therefore explained that the attorney‐client\\nprivilege is not “lost by the mere fact that the information\\ncommunicated [between attorney and client] is otherwise available to\\nthe public.”60 The concept of “official acknowledgment” is thus\\nirrelevant to the Exemption 5 inquiry and cannot provide an\\nindependent basis for overcoming Exemption 5.61\\n\\n\\n\\n See N.Y. Times I, 756 F.3d at 119‐20. The principle underlying the “official\\n 57\\n\\nacknowledgment” doctrine is intuitive: once information is no longer secret, it\\ncannot be protected simply “because it is secret.”\\n 58Upjohn, 449 U.S. at 395 (explaining that the attorney‐client privilege\\n“protects disclosure of communications; it does not protect disclosure of the\\nunderlying facts”).\\n\\n In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032,\\n 59\\n\\n1037 (2d Cir. 1984).\\n 60 United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982); see\\nalso In re Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158,\\n1165 (2d Cir. 1992) (discussing generally the difference between information‐\\nbased and communication‐based privileges).\\n\\n This concept is instead suitable for the Exemptions 1 and 3 inquiries,\\n 61\\n\\nwhere the Government seeks to withhold documents on the ground that they\\ncontain classified information. See, e.g., N. Y. Times I, 756 F.3d at 113, 120 (outlining\\nthe “three‐part test for ‘official disclosure,’ relevant to Exemption 1”).\\n\\n\\n\\n\\n 20\\n\\f By contrast, there is precedent for the ACLU’s argument that the\\nGovernment’s “public reliance” on a document erodes its otherwise\\nprivileged status. While we have not used the precise phrase “public\\nreliance,” we have indeed held that “the attorney‐client privilege may\\nnot be invoked to protect a document adopted as, or incorporated by\\nreference into, an agency’s policy.”62\\n\\n This rule—that an incorporated or adopted document is no\\nlonger protected by privilege—mirrors the general “fairness doctrine”\\nthat governs the implicit waiver of privilege during litigation.63 As we\\nhave previously explained, “courts have found waiver by implication\\nwhen a client testifies concerning portions of the attorney‐client\\ncommunication . . . and when a client asserts reliance on an attorneyʹs\\nadvice as an element of a claim or defense.”64 And so we have\\nconsistently rejected parties’ attempts to withhold attorney‐client\\ncommunications from a litigation adversary while relying on the same\\nmaterial to advance a claim in court.65 To put it simply, in court, a party\\n\\n\\n\\n 62 La Raza, 411 F.3d at 360.\\n 63 See In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); see also Brennan Ctr.,\\n697 F.3d at 208 (“A party’s reliance on an otherwise privileged communication to\\nassert a claim or defense is similar to the type of express adoption or\\nincorporation by reference that vitiates Exemption 5 protection”).\\n 64Cnty. of Erie, 546 F.3d at 228 (quoting Sedco Int’l S.A. v. Cory, 683 F.2d\\n1201, 1206 (8th Cir.1982)) (internal brackets and ellipses omitted).\\n 65John Doe Co. v. United States, 350 F.3d 299, 303 (2d Cir. 2003); see also\\nGeorge A. Davidson & William H. Voth, Waiver of the Attorney‐Client Privilege, 64\\nOR. L. REV. 637, 646‐53 (1986).\\n\\n\\n\\n\\n 21\\n\\fmay not wield a privileged communication as both a “shield and a\\nsword.”66\\n\\n A similar principle applies when the Government “adopts” or\\n“incorporates” a previously privileged document as its effective law\\nand policy.67 Just as a litigating party may not offer a privileged\\ncommunication to invoke the law while maintaining the privilege, so\\ntoo the Government may not expressly adopt a privileged\\ncommunication as its effective law or policy while maintaining the\\nprivilege. As we explain below, however, in this case the Government\\nhas neither expressly “adopted” OLC 10, nor “incorporated [it] by\\nreference.”68\\n\\n 2. The Deliberative Process Privilege\\n\\n In addition to the attorney‐client privilege, OLC 10 also meets\\nthe requirements of the “deliberative process privilege.”\\n\\n Like the attorney‐client privilege, the deliberative process\\nprivilege ensures “frank discussion” and protects agencies from being\\n“forced to operate in a fishbowl.”69 But whereas the attorney‐client\\nprivilege promotes legal compliance in particular, the deliberative\\n\\n 66 In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).\\n\\n See Brennan Ctr., 697 F.3d at 195 (holding that Exemption 5 does not\\n 67\\n\\napply “when the contents have been adopted, formally or informally, as the\\nagency position on an issue”).\\n 68 See Section II.3.b at 37‐40, post.\\n 69 Mink, 410 U.S. at 87 (internal quotation marks omitted).\\n\\n\\n\\n\\n 22\\n\\fprocess privilege promotes reasoned policy‐making in general. As the\\nSupreme Court has explained, “the frank discussion of legal or policy\\nmatters in writing might be inhibited if the discussion were made\\npublic,” and “the decisions and policies formulated would be the\\npoorer as a result.”70 Accordingly, a document may be withheld\\npursuant to this privilege if it is: “(1) predecisional, i.e., prepared in\\norder to assist an agency decisionmaker in arriving at his decision, and\\n(2) deliberative, i.e., actually . . . related to the process by which policies\\nare formulated.”71\\n\\n We think it clear that OLC 10 meets these criteria as well. As we\\nhave previously recognized, “OLC does not purport, and in fact lacks\\nauthority, to make policy decisions. OLC’s legal advice and analysis\\ninforms the decisionmaking of Executive Branch officials on matters\\nof policy, but OLC’s legal advice is not itself dispositive as to any\\npolicy adopted.”72 Moreover, the unredacted portions of OLC 10 make\\nclear that OLC’s role in the Stellar Wind authorization process was\\nexclusively predecisional and deliberative. The document responds to\\n\\n\\n 70 Sears, 421 U.S. at 150‐51 (internal quotation marks omitted). Although\\nSears discusses an “executive privilege” rather than a “deliberative process\\nprivilege,” we have held that “[t]he deliberative process privilege . . . is\\nencompassed within the executive privilege.” Grand Cent. Pʹship, Inc. v. Cuomo,\\n166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks omitted).\\n 71 La Raza, 411 F.3d at 356 (internal quotation marks omitted).\\n 72 Brennan Ctr., 697 F.3d at 203 (citing an OLC declaration); see also N.Y.\\nTimes II, 806 F.3d at 687 (“OLC documents are not working law. At most, they\\nprovide, in their specific contexts, legal advice as to what a department or agency\\nis permitted to do.” (internal quotation marks omitted)).\\n\\n\\n\\n\\n 23\\n\\fthe Attorney General’s request that OLC undertake a “thorough\\nreexamination” of the legality of presidential directives concerning\\nStellar Wind.73 As OLC 10 explains, the Attorney General would\\nconsult OLC advice (such as OLC 10) in choosing whether to approve\\nthe program “as to form and legality.”74 OLC 10 thus preceded and\\ndirectly related to the Attorney General’s approval decision.75\\n\\n 3. The Limits of Exemption 5\\n\\n As we have previously explained, “[j]ust because a document\\nsatisfies [the above] requirements, however, does not mean that the\\ndeliberative process [or attorney‐client] privilege bars its disclosure.”76\\nThe ACLU therefore relies on three doctrines (which it calls\\n“exceptions”) to argue that the Government must release additional\\nportions of OLC 10.77 The ACLU claims (1) that OLC 10 contains\\n“working law,”78 (2) that OLC 10 was “adopted,” or (3) that OLC 10\\n\\n 73 J.A. 277.\\n 74 Id. at 284.\\n 75Indeed, the Attorney General’s approval of the Stellar Wind program “as\\nto form and legality” was itself merely a predecisional and deliberative step\\nbefore the actual policy decision was made by the President—i.e., the decision to\\nreauthorize Stellar Wind. Id.\\n\\n 76 La Raza, 411 F.3d at 356.\\n 77 Properly understood, these doctrines are not “exceptions” to Exemption\\n5 at all. Rather, they are tell‐tale indicators that, notwithstanding its appearance, a\\ndocument simply is not protected by the deliberative process and attorney‐client\\nprivileges.\\n 78 Br. Appellants 18‐23.\\n\\n\\n\\n\\n 24\\n\\fwas “incorporated by reference” as agency policy.79 Although each of\\nthese terms emerges from our caselaw, ACLU’s arguments reveal that\\nour prior decisions have not yet adequately defined these concepts and\\nthe relationship between them. We therefore accept the parties’\\ninvitation to clarify the contours of Exemption 5 and the doctrines that\\ndefine its limits.\\n\\n a. Effective Law and Policy\\n\\n The Supreme Court first provided clear guidance regarding the\\nlimits of FOIA Exemption 5 in 1975 in N.L.R.B v. Sears, Roebuck & Co.80\\nDrawing a clear distinction between deliberative material and\\ndocuments that embody law and policy, the Supreme Court explained:\\n\\n Exemption 5, properly construed, calls for disclosure of\\n all opinions and interpretations which embody the\\n agency’s effective law and policy, and the withholding of\\n all papers which reflect the agency’s group thinking in the\\n process of working out its policy and determining what\\n its law shall be.81\\n\\n The logic of this dichotomy is straightforward. The deliberative\\nprocess privilege protects “communications received by the\\ndecisionmaker on the subject of the decision prior to the time the\\n\\n\\n 79 Id. at 23‐25.\\n 80 421 U.S. 132 (1975).\\n 81 Id. at 153 (internal quotation marks omitted).\\n\\n\\n\\n\\n 25\\n\\fdecision is made” to ensure that the subsequent decision will be fully\\ninformed.82 By contrast, there is little need to preserve the\\nconfidentiality of discussions that take place after a decision has been\\nmade and rendered as the agency’s “effective law and policy.”83\\n\\n Although the conceptual distinction between pre‐decisional\\nadvice and post‐decisional explanation is clear, these materials might\\nlook quite similar in practice. For instance, a letter advising an agency’s\\nleader on how to interpret a statute could look identical to a letter\\ninforming an agency subordinate about how the agency interprets a\\nstatute.\\n\\n In light of the potential for conflation, the doctrines of “working\\nlaw,” “express adoption,” and “incorporation by reference” assist\\ncourts in applying this conceptual distinction.84 As we now explain,\\n“working law” describes a category of post‐decisional material, and\\n“express adoption” and “incorporation by reference” describe two\\nmethods by which pre‐decisional material can become post‐decisional.\\n\\n\\n\\n\\n 82 Id. at 151‐53.\\n 83 See id.\\n 84 See Brennan Ctr., 697 F.3d at 201 (“The question of whether a document\\nconstitutes working law, or has been expressly adopted or incorporated by\\nreference, then, are two paths to determining whether a withheld document\\nconstitutes what FOIA affirmatively requires to be disclosed.” (internal quotation\\nmarks omitted)).\\n\\n\\n\\n\\n 26\\n\\f i. Working Law\\n\\n As might be expected from the phrase itself, a document\\nembodies an agency’s “working law” when the document binds\\nagency officials or members of the public. In other words, working law\\nannounces what an agency’s law is, not what the law might be. Because\\nsuch a document has operative effect—i.e., binding rather than\\npersuasive power—it is inherently post‐decisional.\\n\\n In reaching this conclusion, we find instructive certain cases of\\nthe Court of Appeals for the District of Columbia Circuit (the “D.C.\\nCircuit”), to which we have referred as “a specialist” in differentiating\\nprivileged material from working law.85 The D.C. Circuit has\\nrepeatedly employed a functional test to determine whether a\\ndocument constitutes “working law,” inquiring whether the agency\\ntreats the document as binding.\\n\\n For instance, in Coastal States Gas Corp. v. Department of Energy,\\nthe case from which the working law doctrine emerged, the D.C.\\nCircuit held that when an agency circulated and consulted certain\\ndocuments as a source of binding authority, these documents were a\\npost‐decisional “functioning body of secret law.”86 In that case, the\\nplaintiffs sought disclosure of agency “memoranda from regional\\ncounsel to auditors . . . issued in response to requests for\\ninterpretations of regulations within the context of particular facts\\n\\n\\n 85 Id. at 200.\\n 86 617 F.2d 854, 866 (D.C. Cir. 1980) (internal quotation marks omitted).\\n\\n\\n\\n\\n 27\\n\\fencountered while conducting an audit of a firm.”87 Evidence revealed\\nthat agency auditors did not simply regard the contested memoranda\\nas persuasive or advisory, but that the memoranda “were retained and\\nreferred to as precedent.”88 In particular, the D.C. Circuit determined\\nthat auditors could not “freely disregard[]” these memoranda, but\\nwould request they be “rescinded, amended, or referred to a higher\\nauthority.”89 Bound by the directions contained therein, agency\\nauditors then “actually applied” these directions in their “dealings\\nwith the public.”90 These features led the D.C. Circuit to conclude that\\nthe memoranda were not simply pre‐decisional legal advice, but the\\nproduct of the decision‐making process. The agency had, through the\\ncirculation of these documents, “promulgated a body of secret law.”91\\n\\n Similarly, in Tax Analysts v. Internal Revenue Service, the D.C.\\nCircuit found that legal memoranda issued by the IRS’s Office of Chief\\nCounsel to officials in the field constituted “working law” even though\\nthe memoranda were “nominally non‐binding.”92 Despite their\\nnominally advisory status, the memoranda had been distributed to\\nensure “the promotion of uniformity throughout the country on\\n\\n\\n 87 Id. at 858.\\n 88 Id. at 869.\\n 89 Id.\\n 90 Id.\\n 91 Id.\\n 92 117 F.3d 607, 617 (D.C. Cir. 1997).\\n\\n\\n\\n\\n 28\\n\\fsignificant questions of tax law.”93 Because these memoranda\\nfunctioned as precedent rather than mere guidance, the D.C. Circuit\\nconcluded that they constituted “working law” rather than pre‐\\ndecisional advice.94\\n\\n As we have previously noted, “[o]ur Court has relatively little\\ncase law examining the ‘working law’ principle.”95 Those few\\nprecedents we do have, however, are entirely consistent with the\\nprinciple that emerges from the D.C. Circuit cases—namely, that\\nworking law must be binding.96\\n\\n To decide the instant case, we need not reach a comprehensive\\ndefinition of “working law.” But we do identify a few guiding\\nprinciples to district courts faced with the task of determining whether\\na document is functionally binding and hence, “working law.” Such\\nprinciples include: whether agency officials feel free to disregard the\\ndocument’s instructions;97 whether an agency superior distributes the\\n\\n\\n\\n\\n 93 Id. (internal quotation marks omitted).\\n 94 Id. at 619.\\n 95 Brennan Ctr., 697 F.3d at 201.\\n 96 See id. at 198 (equating “working law” with “final opinions” or reports\\nthat have “operative effect”); N.Y. Times II, 806 F.3d at 687 (explaining that OLC\\nopinions are not “working law” subject to disclosure because “[a]t most, they\\nprovide, in their specific contexts, legal advice as to what a department or agency\\nis permitted to do” (internal quotation marks omitted)).\\n 97 See Coastal States, 617 F.2d at 869.\\n\\n\\n\\n\\n 29\\n\\fdocument to subordinates (rather than vice versa); 98 whether agency\\nsuperiors direct their subordinates to follow the document’s\\ninstructions;99 whether the document is applied in the agency’s\\ndealings with the public;100 and whether failure to follow a document’s\\ninstructions provides cause for professional sanction. These factors all\\nprovide indications as to whether a document has become binding on\\nagency officials and therefore represents an agency’s “effective law\\nand policy.”101\\n\\n ii. Express Adoption\\n\\n Occasionally, documents drafted as pre‐decisional material will\\nultimately be recycled and reissued as an agency’s “working law.” The\\ndoctrine of “express adoption” describes a process by which courts can\\ndiscern whether a document first drafted as legal or policy advice has\\nbecome an agency’s “effective law and policy.”\\n\\n For instance, an agency’s director might receive a memorandum\\nfrom counsel advising him or her how to conduct a program in\\naccordance with law. The director might then distribute that\\ndocument to subordinates with instructions to obey the advice\\nrendered therein. After such distribution, the document is no longer\\nprivileged. The reason is straightforward: while the initial\\n\\n 98 See Jordan v. U.S. Depʹt of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).\\n 99 Id.\\n 100 Coastal States, 617 F.2d at 866.\\n 101 Sears, 421 U.S. at 153.\\n\\n\\n\\n\\n 30\\n\\fcommunication was deliberative and pre‐decisional, the subsequent\\ncommunication was a promulgation of “working law,” and therefore\\npost‐decisional and no longer privileged.\\n\\n Because the adoption process is usually internal and hidden\\nfrom public view, our Court’s “express adoption” cases have generally\\nlooked for external evidence that such adoption has occurred. In New\\nYork Times Co. v. Department of Justice (“New York Times I”), for instance,\\nwe held that certain Government disclosures fatally undermined the\\nGovernment’s claims that an (initially classified and advisory) OLC\\nmemorandum was privileged.102 We noted that senior government\\nofficials engaged in “an extensive public relations campaign to\\nconvince the public” of the lawfulness of a government program,103\\nand we observed that Attorney General Eric Holder invoked the\\ndisputed OLC memorandum as authority for the purposes of that\\ncampaign.104 We also highlighted the Senate testimony of then‐\\nAssistant to the President for Homeland Security and\\nCounterterrorism (and incoming Director of the CIA) John O. Brennan\\nthat “Office of Legal Counsel advice establishes the legal boundaries\\n\\n\\n\\n\\n 102 See N.Y. Times I, 756 F.3d at 116.\\n 103 Id. at 114.\\n 104Id. at 116; see also Oversight of the U.S. Department of Justice Before the\\nSenate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013), available at\\nhttps://fas.org/irp/congress/2013_hr/doj.pdf (explaining that the relevant legal\\nstandard would be “more clear if it is read in conjunction with the underlying\\nOLC advice”).\\n\\n\\n\\n\\n 31\\n\\fwithin which we can operate.”105 Together, these statements revealed\\nthat the OLC memorandum was no longer simply advice to a policy‐\\nmaker, but that the Government afforded the memorandum binding\\nforce within the Executive Branch as its “effective law and policy.”106\\n\\n Although less explicit, our decision in National Council of La Raza\\nv. Department of Justice, rests on similar reasoning.107 In that case, we\\nheld that the Department of Justice expressly adopted a 2002 OLC\\n\\n 105 Id. at 111; see also id. at 116. (“[T]he deliberative process privilege [and]\\nthe attorney‐client privilege may not be invoked to protect a document adopted\\nas, or incorporated by reference into, an agency’s policy. Here, the Government\\nhas done so by publicly asserting that OLC advice ‘establishes the legal\\nboundaries within which we can operate.’”) (internal quotation marks and\\ncitations omitted). In context, Mr. Brennan’s statement clearly refers specifically to\\nOLC advice concerning the Government’s targeted killing program. See\\nNomination of John O. Brennan to be Director of the Central Intelligence Agency:\\nHearing Before the S. Select Comm. on Intelligence, 113 Cong. 44 (Feb. 7, 2013)\\n(“Brennan Hearing”), https://www.intelligence.senate.gov/hearings/open‐hearing‐\\nnomination‐john‐o‐brennan‐be‐director‐central‐intelligence‐agency#.\\n 106 To be clear, the Government’s public statements serve as express\\nevidence that the Government adopted the OLC memorandum as binding on the\\nCIA. The remarks themselves do not, however, constitute adoption. Indeed, Mr.\\nBrennan (who was not yet CIA Director when he made these statements), lacked\\nthe authority to adopt the OLC memorandum as binding authority. Adoption\\noccurs when an agency itself accepts a previously deliberative document as\\nbinding, or actually acts (or refrains from acting) pursuant to the binding\\ninstruction (i.e., as “working law”) of that document. See Elec. Frontier Found. v.\\nU.S. Depʹt of Justice, 739 F.3d 1, 11 (D.C. Cir. 2014).\\n 107 La Raza, 411 F.3d at 350. Admittedly, our opinion in La Raza is\\nsomewhat imprecise regarding whether “adoption” or “incorporation” provided\\nthe precise basis for our decision, or even whether there is a difference between\\nthe two. As we define and explain the terms, however, La Raza is best understood\\nas a case of express adoption.\\n\\n\\n\\n\\n 32\\n\\fmemorandum authorizing state governments to make arrests for civil\\nviolations of federal immigration provisions.108 We noted that the\\nAttorney General and his senior staff repeatedly invoked the OLC\\nmemorandum not just to defend its own policy, but as embodying this\\nnew policy.109 These official statements, we explained,\\n“demonstrate[d] that [DOJ] regarded the Memorandum as the\\nexclusive statement of . . . its new policy.”110 Moreover, DOJ’s effective\\npromulgation of this OLC memorandum, as revealed in its public\\nstatements, carried substantive legal effects for “what a third party—\\nstate and local law enforcement—should and could lawfully do.”111 The\\nstatements therefore amounted to “powerful evidence that [DOJ]\\nexplicitly adopted the OLC Memorandum as part of its policy.”112\\n\\n Similarly, in Brennan Center for Justice v. Department of Justice, we\\nfound that public statements revealed that the United States Agency\\nfor International Development (“USAID”) had adopted an OLC\\nmemorandum.113 In particular, we pointed to a USAID policy\\n\\n\\n 108 Id. at 357‐58.\\n 109 Id. at 353‐55.\\n 110 Id. at 357.\\n 111 Id. at 359 (internal quotation marks omitted).\\n 112 Id. at 359–60.\\n 113 Brennan Ctr., 697 F.3d at 204‐05. As in La Raza, our opinion in Brennan\\nCenter is unclear about whether “adoption” or “incorporation” provided the\\nprecise basis for our decision. Again, however, as we understand and explain the\\nterms here, Brennan Center is best understood as a case of express adoption.\\n\\n\\n\\n\\n 33\\n\\fdocument explaining that OLC had “determined” that a statutory\\nfunding restriction “only may be applied to foreign non‐governmental\\norganizations and public international organizations.”114 Later, a\\nsenior USAID official confirmed that OLC’s determination had\\neffectively dictated USAID’s new approach.115 Taken together, these\\nUSAID statements provided powerful evidence that senior agency\\nofficials related to OLC’s legal advice as binding authority, i.e. as\\n“working law.” We therefore found that USAID adopted the OLC\\nmemorandum.\\n\\n iii. Incorporation by Reference\\n\\n A close cousin to the doctrine of “express adoption” is the\\ndoctrine of “incorporation by reference.” Much like adoption, an\\nagency incorporates a document by reference when it transforms a\\npreviously advisory document into binding “working law.”116 But\\nwhereas in “express adoption” cases we look for indications that an\\nagency relates to the document as binding, in cases of “incorporation\\n\\n\\n\\n 114 Id. at 204.\\n 115Id. (citing congressional testimony of Randall Tobias, the U.S. Global\\nAIDS Coordinator, who explained that he was “simply following the legislation\\nand the advice to implement that”).\\n 116When a party claims that a previously privileged document has been\\n“incorporated by refence,” a court’s task is usually to decide whether a reference\\nto that document itself promulgates the document as binding law. By contrast, in\\nmost “express adoption” cases, the court inquires whether an agency’s remarks\\nabout a previously privileged document provide evidence that the document has\\nalready been promulgated as working law. See note 106, ante.\\n\\n\\n\\n\\n 34\\n\\fby reference,” we identify the agency’s enactment of that document as\\nits law or policy through explicit textual reference in a final decision.117\\n\\n The D.C. Circuit first recognized the doctrine of “incorporation\\nby reference” in a 1969 case, American Mail Line, Ltd. v. Gulick.118 There,\\nthe court held that by stating “publicly in [a] ruling that its action was\\nbased upon [a specific] memorandum, [and] giving no other reasons\\nor basis for its action,” the Maritime Subsidy Board of the Department\\nof Commerce forfeited that memorandum’s “intra‐agency status” and\\nincorporated it into “a public record” that “must be disclosed.”119\\n\\n Six years later, in Sears, the Supreme Court endorsed the D.C.\\nCircuit’s approach, holding that “if an agency chooses expressly to . . .\\nincorporate by reference an intra‐agency memorandum previously\\ncovered by Exemption 5 in what would otherwise be a final opinion,\\nthat memorandum may be withheld only on the ground that it falls\\nwithin the coverage of some exemption other than Exemption 5.”120\\n\\n Importantly, American Mail Line and Sears limit “incorporation\\nby reference” to circumstances where the disputed memorandum is\\n\\n\\n 117 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 254 (2006) (describing an\\nagency interpretive rule as “[i]ncorporating the legal analysis of a memorandum .\\n. . solicited from [OLC]”); see also Dispensing of Controlled Substances To Assist\\nSuicide, 66 Fed. Reg. 56,607‐02 (Nov. 9, 2001) (promulgating an interpretive rule\\nwhile incorporating a memorandum from the Attorney General).\\n 118 411 F.2d 696 (D.C. Cir. 1969).\\n 119 Id. at 703.\\n 120 421 U.S. at 161.\\n\\n\\n\\n\\n 35\\n\\frelied on in a “final opinion” or “ruling.” To decide the instant case,\\nwe need not define these terms precisely.121 But we think it clear that\\nincorporation occurs only when the incorporating “opinion” is itself a\\ndocument with functionally binding effect. This limitation is\\nsignificant; a decisionmaker’s mere statements expressing his or her\\nreliance on the reasoning of a separate memorandum do not amount\\nto “incorporation” of that memorandum. The limitation is also\\nsensible. Statements such as “we checked it with counsel,” or “we\\nrelied on the assessments of experts” are standard responses in\\ncongressional testimony or public statements. Appropriately, such\\nstatements cannot “incorporate by reference” external memoranda\\nbecause such statements do not themselves have binding effect, either\\nwithin the agency or on the public.\\n\\n In sum, a previously privileged document is subject to\\ndisclosure under the doctrine of “incorporation by reference” only\\nwhen an agency’s formal opinion or determination of law or policy\\nexpressly references and relies on that document and its reasoning as\\nthe basis for a decision.\\n\\n b. Application\\n\\n The above principles dictate the outcome of this case. The ACLU\\nargues that “reliance on legal analysis as a basis for its operational\\n\\n\\n 121 Among the open issues that we do not decide: whether an incorporating\\n“final opinion” must (1) be public; (2) adjudicate the rights of individual, private\\nparties; or (3) have the “force and effect of law,” see Chrysler Corp. v. Brown, 441\\nU.S. 281, 282 (1979).\\n\\n\\n\\n\\n 36\\n\\fdecisions transforms that analysis into working law.”122 Not so. As we\\nhave explained, a document is only “working law” when it operates\\nas functionally binding authority on agency decision‐makers. Here,\\nOLC 10 was drafted as legal advice rather than binding authority and\\nso was not “working law” when created.123 To be sure, a document\\nfirst drafted as legal advice can still be adopted as working law or\\nincorporated into agency decisions. But mere agreement with a\\ndocument’s reasoning and conclusion is insufficient to transform\\nadvice into law. Instead, the document must be treated as binding by\\nthe agency (i.e. “adoption”) or explicitly relied upon in a formal\\ndecision (i.e. “incorporation by reference”).\\n\\n Here, there is no evidence that the Government ever “adopted”\\nOLC 10 as binding; nor has the ACLU identified a single agency\\nopinion that incorporates OLC 10 by reference.\\n\\n The ACLU’s arguments to the contrary are unavailing. The\\nACLU first points to a publicly released 2006 “White Paper” that\\ncontains “much of the legal reasoning” in OLC 10.124 As we have\\n\\n 122 Reply Br. Appellants 3‐4.\\n 123See note 72, ante; see also Elec. Frontier Found., 739 F.3d at 9 (holding that\\nan OLC opinion submitted to the FBI did not constitute “working law” because\\n“OLC is not authorized to make decisions about the FBIʹs investigative policy, so\\nthe OLC Opinion cannot be an authoritative statement of the agencyʹs policy”); see\\nalso Citizens for Responsibility & Ethics in Washington v. United States Depʹt of Justice,\\n922 F.3d 480, 486 (D.C. Cir. 2019) (“An OLC opinion in the latter category qualifies\\nas the ‘working law’ of an agency only if the agency has ‘adopted’ the opinion as\\nits own.”).\\n 124 Br. Appellants 25 (brackets omitted). See also note 23, ante.\\n\\n\\n\\n\\n 37\\n\\fexplained, however, disclosure of similar information to that contained\\nin documents protected by the attorney‐client or deliberative process\\nprivileges does not waive the privilege. These privileges protect a\\ncommunication, not information.125\\n\\n Next, the ACLU contends that a series of public statements by\\nthe Government indicates either that OLC 10 is working law, or that\\nthe Government expressly adopted OLC 10, or that it incorporated\\nOLC 10 by reference.126 In particular, the ACLU draws our attention to\\n(1) a press briefing during which Attorney General Gonzalez\\ndescribed OLC 10 as analyzing the “legal underpinnings” of the Stellar\\nWind program;127 (2) an internal agency report, which states that OLC\\n10 provided “a new legal basis” for the program;128 and (3) Attorney\\n\\n 125 See Section II.B.1, ante.\\n 126The Government urges us not to consider certain public statements by\\nthe Government that were available when the parties were before the District\\nCourt, but that the ACLU did not explicitly raise in its briefing below. These\\nstatements include the 2005 White House press briefing by Attorney General\\nGonzales, the 2006 Senate testimony (also by Gonzales), and the 2006 DOJ White\\nPaper. We decline to disregard these materials. The Government is, of course,\\ncorrect that we do not ordinarily hear arguments made for the first time on\\nappeal. See, e.g., Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018).\\nThe ACLU’s reference to these statements does not constitute a new argument,\\nhowever, but simply new evidence in support of old arguments, which “appeals\\ncourts may entertain.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir.\\n2006) Moreover, the Government’s subsequent public statements are precisely the\\nsort of materials of which we may take judicial notice. See N.Y. Times I, 756 F.3d at\\n110 n.8. We therefore consider these statements in evaluating the ACLU’s claims.\\n 127 See 2005 Press Briefing, note 19, ante.\\n 128 See Joint IG Report, note 23, ante, at 37.\\n\\n\\n\\n\\n 38\\n\\fGeneral Gonzalez’s testimony before the Senate, in which he stated\\nthat he “agreed with [OLC’s] legal analysis.”129\\n\\n These governmental disclosures illustrate, at most, the\\nfollowing: that OLC analyzed a legal question, that the Attorney\\nGeneral reviewed that analysis and agreed with it, and that the\\nAttorney General then certified the program. None of the\\ngovernmental disclosures indicate that the Attorney General (or any\\nother official) ever distributed the OLC memorandum as binding\\nprecedent, or that officials within NSA or another agency ever\\nregarded OLC 10 as binding authority.130 Nor do any of these\\ndisclosures represent an official decision or final opinion that explicitly\\nreferences and relies on OLC 10; press briefings, congressional\\ntestimony, white papers and inspectors general reports might be\\ninformative, but they rarely, if ever, amount to official decisions or\\n“final opinions.”\\n\\n\\n 129 See 2006 Hearing, note 24, ante.\\n 130 The section of the IG Report to which the ACLU points (entitled “A\\nNew Legal Basis for the Program is Adopted”) does not constitute evidence that\\nOLC 10 was “expressly adopted” for several reasons: first, while the ACLU\\nsuggests that the “new legal basis” mentioned here refers to OLC 10, it seems that\\nthis section of the IG Report in fact describes a period prior to the writing of OLC\\n10. Moreover, it is not even clear that the “new legal basis” discussed here refers\\nto a specific document at all. On the contrary, it seems more likely that the phrase\\n“new legal basis” simply refers to a new interpretation of already‐extant\\nconstitutional and statutory law. In other words, there is no reason to assume that\\nthe IG Report used the word “adoption” as we employ it in this opinion; the IG\\nReport may simply describe a shift in Administration lawyers’ best\\nunderstanding of applicable law, not a promulgation of a new “policy.”\\n\\n\\n\\n\\n 39\\n\\f It follows that OLC 10 was not created as working law, was\\nnever adopted as working law, and was never incorporated by\\nreference. We therefore hold that OLC 10 is protected by the\\ndeliberative process and attorney‐client privileges, and was properly\\nwithheld under Exemption 5.\\n\\n C. The Intelligence Program Documents\\n\\n We also affirm the District Court’s holding that the six\\nintelligence program documents are exempt from disclosure under\\nFOIA Exemptions 1 and 3.\\n\\n Exemption 1 permits agencies to withhold records that have\\nbeen “specifically authorized under criteria established by an\\nExecutive order to be kept secret in the interest of national defense or\\nforeign policy and . . . are in fact properly classified pursuant to such\\nExecutive order.”131 As relevant here, Executive Order 13,526 permits\\nclassification of information if it pertains to “intelligence sources or\\nmethods” or “foreign relations or foreign activities of the United\\nStates,” where “unauthorized disclosure of the information reasonably\\ncould be expected to result in damage to the national security.”132\\n\\n FOIA Exemption 3 applies to records “specifically exempted\\nfrom disclosure by statute.”133 Here, the Government has invoked\\n\\n 131 5 U.S.C. § 552(b)(1)(A).\\n 132 Exec. Order No. 13,526, 75 Fed. Reg. 707, 707 § 1.1(a)(3)‐(4), 709 § 1.4(c)‐\\n(d) (Dec. 29, 2009).\\n 133 5 U.S.C. § 552(b)(3).\\n\\n\\n\\n\\n 40\\n\\fseveral statutes, including the National Security Act, which requires\\nthat the Director of National Intelligence “protect intelligence sources\\nand methods from unauthorized disclosure.”134 The ACLU does not\\ndispute that each law qualifies as an exemption statute under\\nExemption 3.135\\n\\n The Government bears the burden of establishing that these\\nexemptions apply, but it can do so by submitting affidavits showing\\nthat the statute’s application “appears logical or plausible.”136 Such\\naffidavits must describe “with reasonably specific detail” how the\\nwithheld information “logically falls within the claimed exemption,”\\nand must not be “controverted by either contrary evidence in the\\nrecord nor by evidence of agency bad faith.”137\\n\\n Here, the Government has met its burden. The requested\\nintelligence program documents concern highly sensitive surveillance\\nprograms.138 A senior intelligence official has attested that each\\n\\n 134 50 U.S.C. § 3024(i)(1). In addition, the Government invokes statutory\\nprovisions related to the NSA, CIA, and communications intelligence activities\\ngenerally. See 50 U.S.C. § 3605 (NSA); 50 U.S.C. § 3507 (CIA); 18 U.S.C. § 798\\n(setting forth criminal penalties for disclosure of classified information).\\n 135ACLU I, 2017 WL 1155910, at *16; see also CIA v. Sims, 471 U.S. 159, 168\\n(1985) (holding that an earlier version of the relevant National Security Act\\nprovision “qualifies as a withholding statute under Exemption 3”).\\n 136Wilner v. Natʹl Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (internal\\nquotation marks omitted).\\n 137 Id. (internal quotation marks omitted).\\n 138 See, e.g., J.A. 178‐82.\\n\\n\\n\\n\\n 41\\n\\fdisputed document concerns “particular intelligence sources, and\\nrelated methods used to collect and process foreign communications”;\\nthat the existence of these sources and methods is ”currently and\\nproperly classified”; and that disclosure of any meaningful part of\\nthese documents “would reveal core NSA foreign intelligence\\nactivities.”139\\n\\n In response to these declarations, the ACLU suggests that the\\nGovernment failed to segregate and release non‐exempt legal\\nanalysis.140 The ACLU points out that “the legal memoranda within\\nthe packages are quite lengthy,”141 and that, in light of the “volume\\nand breadth of public information” about the Stellar Wind program,\\n“it strains credulity to claim that disclosure of pure legal analysis\\nrelated to the program could damage national security today.”142\\n\\n Our credulity is not so easily strained. As we have previously\\nobserved, “the very fact that legal analysis was given concerning a\\nplanned operation would risk disclosure of the likelihood of that\\n\\n\\n\\n\\n 139Id. at 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\\nPolicy and Records, NSA). The Government’s classified declaration contains more\\ndetail about these documents’ sensitivity. See id. at 447.\\n\\n FOIA “requires agencies and courts to differentiate among the contents\\n 140\\n\\nof a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.”\\nAbramson, 456 U.S. at 626.\\n 141 Br. Appellants 42.\\n 142 Id. at 39.\\n\\n\\n\\n\\n 42\\n\\foperation.”143 Similarly, disclosure of even “[m]inor details of\\nintelligence information may reveal more information than their\\napparent insignificance suggests because, much like a piece of [a]\\njigsaw puzzle, each detail may aid in piecing together other bits of\\ninformation even when the individual piece is not of obvious\\nimportance in itself.”144 We have long recognized that “in some\\ncircumstances legal analysis could be so intertwined with facts entitled\\nto protection that disclosure of the analysis would disclose such\\nfacts.”145 Moreover, in this case, a senior national security official has\\naffirmed that the legal analysis contained in these memoranda is\\n“inextricably intertwined” with material that is both classified and\\nprotected by statute.146\\n\\n In light of “the relative competencies of the executive and\\njudiciary,” we generally adopt a “deferential posture in FOIA cases\\nregarding the uniquely executive purview of national security.”147\\n\\n\\n\\n\\n 143 N.Y. Times I, 756 F.3d at 119.\\n 144 Wilner, 592 F.3d at 73 (internal quotation marks and brackets omitted).\\n 145 N.Y. Times I, 756 F.3d at 119; see also N.Y. Times II, 806 F.3d at 687\\n(holding that certain OLC documents are entitled to protection because “it would\\nbe difficult to redact any arguably disclosable lines of legal analysis from these\\ndocuments without disclosing the contents of [another protected] document”).\\n 146J.A. 450 ¶ 4 (Supplemental Declaration of David J. Sherman, Associate\\nDirector for Policy and Records, NSA).\\n 147 Wilner, 592 F.3d at 76 (internal quotation marks omitted).\\n\\n\\n\\n\\n 43\\n\\fAccordingly, we again decline to “second‐guess the predictive\\njudgments made by the government’s intelligence agencies.”148\\n\\n We therefore hold that the surveillance approval packages were\\nproperly withheld under Exemptions 1 and 3.\\n\\n D. The Request for “Reprocessing”\\n\\n Lastly, we briefly address the ACLU’s request that we “order the\\nre‐processing” of the contested documents in light of several\\ngovernmental disclosures that post‐date the agency’s initial FOIA\\ndecision.149\\n\\n The ACLU identifies three such disclosures: (1) the full Joint IG\\nReport (released in September 2015), (2) OLC 9 (released in February\\n2016), and (3) OLC 8 (released while this appeal was pending).\\nAlthough these disclosures are subsequent to the Government’s initial\\nFOIA decision, the ACLU reminds us that it is “legally entitled to file\\na new FOIA request at any time,” and so urges us to consider these\\ndocuments now in the interests of judicial economy.150\\n\\n The Government responds that these disclosures cannot be the\\nbasis for such an order because “[a]s a general rule, a FOIA decision is\\nevaluated as of the time it was made and not at the time of a court’s\\n\\n\\n\\n 148 Id. (internal quotation marks omitted).\\n 149 Br. Appellants 47.\\n 150 Reply Br. Appellants 20.\\n\\n\\n\\n\\n 44\\n\\freview.”151 Relying on precisely this rule, the District Court declined\\nto order reprocessing.152\\n\\n Today, we reaffirm the general rule, and further hold that a\\ncourt reviewing a FOIA decision must not order reprocessing simply\\nto reassure itself that a correct decision remains current. As we have\\npreviously observed, “[t]o require an agency to adjust or modify its\\nFOIA response based on post‐response occurrences could create an\\nendless cycle of judicially mandated reprocessing each time some\\ncircumstance changes.”153 This case highlights the importance of our\\ngeneral practice. Indeed, one of the disclosures the ACLU urges us to\\nconsider—OLC 8—was released between the filing of the ACLUʹs\\nappellate briefs. Imposing a continuing duty on agencies to update\\ntheir responses to FOIA requests as “potentially relevant” documents\\n(or, as is the case with the Joint IG Report, more sections of a certain\\ndocument) are disclosed piecemeal renders agencies vulnerable to\\nrepeated reprocessing requests mid‐litigation. FOIA does not subject\\nagencies or the courts to such “an endlessly moving target.”154\\n\\n While we have occasionally departed from our general rule and\\nconsidered subsequent developments as part of a FOIA review, we\\nhave done so only in exceptional circumstances. And crucially, we\\n\\n 151 N.Y. Times I, 756 F.3d at 110 n.8.\\n 152 ACLU I, 2017 WL 1155910, at *22.\\n 153 Florez v. C.I.A., 829 F.3d 178, 188 (2d Cir. 2016) (quoting Bonner v. Dep’t\\nof State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)) (internal quotation marks omitted).\\n 154 Bonner, 928 F.2d at 1153 (internal quotation mark omitted).\\n\\n\\n\\n\\n 45\\n\\fhave never ordered an agency to reprocess records simply to reassure\\nourselves that a FOIA decision remains up‐to‐date. In Florez v. Central\\nIntelligence Agency, for instance, we remanded to the District Court in\\nlight of disclosures that post‐dated the Government’s decision to\\nwithhold particular documents.155 Critically, however, we noted that\\nthe agency had already voluntarily reprocessed the documents.156\\nThus, our decision imposed no additional burden on the agency.\\n\\n Similarly, in New York Times I, although we considered post‐\\ndecision disclosures in our review, we did so only because\\nreprocessing was unnecessary to decide whether the withheld\\ndocuments were subject to disclosure.157 In that case, the CIA had\\nreplied to a FOIA request relating to a CIA targeted killing program\\nwith a “Glomar response”158—neither confirming nor denying the\\nexistence of a document.159 The CIA justified its Glomar response by\\nstating that “the government has never disclosed . . . whether the CIA\\nhas an operational role in the use of targeted lethal force or is\\n\\n\\n 155 Florez, 829 F.3d at 187‐88.\\n 156 Id. at 188.\\n 157N.Y. Times I, 756 F.3d at 111 n.8 (“The Government’s post‐request\\ndisclosures go to the heart of the contested issue, and, as discussed below, are\\ninconsistent with some of its prior claims.” (internal quotation marks, citations,\\nand brackets omitted)).\\n\\n The term derives from the Hughes Glomar Explorer, a vessel purportedly\\n 158\\n\\nowned and operated by the CIA, which the Government refused to\\nacknowledge. See Phillippi v. CIA, 546 F.2d 1009, 1010‐12 (D.C. Cir. 1976).\\n 159 N.Y. Times I, 756 F.3d at 103, 105.\\n\\n\\n\\n\\n 46\\n\\fauthorized to use such force.”160 This statement was directly\\ncontradicted by the post‐request disclosures that discussed the CIA\\nprogram explicitly.161 There was thus no question that, at the time of\\nthe appeal, the Governmentʹs “Glomar response” was no longer\\nsustainable.162\\n\\n The post‐request disclosures at issue in New York Times I were\\ntherefore not just potentially relevant, but clearly dispositive of the\\nGovernment’s secrecy claims. Under such circumstances, declining to\\ntake judicial notice of public statements would serve no purpose.\\nIgnoring such statements would have needlessly added work for the\\ncourts and simply delayed the inevitable for the agencies.\\n\\n In sum, our Court has only departed from the general rule—that\\nan agency’s FOIA decision is evaluated as of the time it was made—\\nwhen doing so is in the clear interest of judicial economy and would\\nnot burden the agency with prudential reprocessing. Those are not the\\ncircumstances here. The Government has not already reprocessed the\\nmaterial in light of the subsequent disclosures, and the subsequent\\n\\n\\n\\n\\n 160 Id. at 122 (brackets omitted).\\n 161Id. (“With CIA identified, the [Government’s] main argument for the\\nuse of Glomar . . . responses evaporates.”).\\n 162See Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a\\nGlomar response when the existence or nonexistence of the particular records\\ncovered by the Glomar response has been officially and publicly disclosed.”).\\n\\n\\n\\n\\n 47\\n\\fdisclosures do not on their face plainly undermine the Government’s\\nclaimed privilege.\\n\\n Accordingly, we decline to order reprocessing in light of the\\nsubsequent disclosures of portions of the Joint IG Report, OLC 9, and\\nOLC 8.\\n\\n III. CONCLUSION\\n\\n To summarize, we hold as follows:\\n\\n (1) A document reflects an agency’s “working law” when the\\n agency regards that document as functionally binding\\n authority. “Adoption” and “incorporation by reference” are\\n means by which an otherwise privileged document becomes\\n an agency’s “working law.”\\n\\n (2) “Express adoption” is a basis for disclosure of a previously\\n privileged document where an agency’s statements indicate\\n that it now acts (or refrains from acting) pursuant to the\\n document’s functionally binding authority.\\n\\n (3) “Incorporation by reference” is a basis for disclosure of a\\n previously privileged document where an agency’s formal\\n opinion or ruling explicitly relies on that document and its\\n reasoning in reaching a decision.\\n\\n (4) OLC 10 was properly withheld under FOIA Exemption 5\\n (privileged communications).\\n\\n\\n\\n\\n 48\\n\\f (5) The six intelligence program documents at issue were\\n properly withheld under FOIA Exemptions 1 (classified\\n information) and 3 (material shielded from disclosure by\\n other statutes).\\n\\n (6) Because FOIA decisions must be evaluated as of the time of\\n the agency decision, courts should not order reprocessing\\n simply to reassure themselves that a FOIA decision remains\\n current in light of subsequent disclosures. We therefore\\n decline to order reprocessing.\\n\\n For the foregoing reasons, the August 22, 2017 judgment of the\\nDistrict Court is AFFIRMED.\\n\\n\\n\\n\\n 49\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4402100/\", \"author_raw\": \"Judge\"}]}"},"judge1":{"kind":"string","value":"CABRANES"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"SCHOFIELD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4624847/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY, Central Intelligence Agency, United States Department of Defense, United States Department of Justice, United States Department of State, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-05-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐3399‐cv\nAm. Civil Liberties Union v. Nat’l Sec. Agency\n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n\n\n AUGUST TERM 2018\n\n No. 17‐3399‐cv\n\n AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION\n FOUNDATION,\n Plaintiffs‐Appellants,\n\n v.\n\n NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY,\n UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES\n DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE,\n Defendants‐Appellees.\n\n\n\n On Appeal from the United States District Court\n for the Southern District of New York\n\n\n\n ARGUED: DECEMBER 4, 2018\n DECIDED: MAY 30, 2019\n\fBefore: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District\nJudge.*\n\n\n\n\n Plaintiffs‐Appellants, the American Civil Liberties Union and\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\nrequested documents concerning the legal authority for certain\nnational security programs from Defendants‐Appellees, several\nfederal agencies (jointly, “the Government”). After exhausting\nadministrative remedies, the ACLU filed suit under the Freedom of\nInformation Act (“FOIA”), requesting that the District Court compel\ndisclosure. To defend the decision to withhold several documents, the\nGovernment invoked specific statutory exemptions, including FOIA\nExemption 5, which protects from disclosure attorney‐client and\ndeliberative communications. The District Court (Kimba M. Wood,\nJudge) granted summary judgment in the Government’s favor, holding\nthat the agencies properly withheld the documents under FOIA. On\nappeal, the ACLU argues that Exemption 5 does not apply because the\nGovernment adopted or incorporated the disputed documents when\nit “relied on” the legal advice contained therein. We conclude that\nunder Exemption 5, an agency (1) “adopts” a previously privileged\ndocument where the agency’s statements or behavior indicate that the\nagency treats the document as binding authority, and (2)\n“incorporates” a previously privileged document “by reference”\n\n\n Judge Lorna G. Schofield, of the United States District Court for the\n *\n\nSouthern District of New York, sitting by designation.\n\n\n\n\n 2\n\fwhere a formal agency opinion or decision explicitly relies on that\ndocument and its reasoning. We find no such adoption or\nincorporation to have occurred in this case. Accordingly, we affirm the\njudgment of the District Court.\n\n _______\n\n ASHLEY GORSKI (Patrick Toomey, American\n Civil Liberties Union Foundation, New York,\n NY; Hannah Bloch‐Wehba, David Schulz,\n Sebastian Brady, Diana Lee, Paulina Perlin,\n Media Freedom and Information Access\n Clinic, Abrams Institute, Yale Law School,\n New Haven, CT, on the brief), American Civil\n Liberties Union Foundation, New York, NY,\n for Plaintiffs‐Appellants.\n\n JEAN‐DAVID BARNEA (David S. Jones and\n Benjamin H. Torrance, Assistant United\n States Attorneys, on the brief), Assistant\n United States Attorney, for Geoffrey S.\n Berman, United States Attorney for the\n Southern District of New York, New York,\n NY, for Defendants‐Appellees.\n\n ________\n\n\n\n\n 3\n\f JOSÉ A. CABRANES, Circuit Judge:\n\n The American people have the right to know the laws and\npolicies that bind our government and its agencies. At the same time,\ngovernment officials must be able to receive confidential legal advice\nand deliberate frankly. Sometimes, these principles appear\ncontradictory. We can, however, accommodate both by carefully\ndefining the boundary between law, on the one hand, and advice, on\nthe other. Put simply, law binds. Accordingly, when inquiring whether\na document constitutes an agency’s “effective law and policy” or\nwhether it merely contains legal or policy advice, courts should inquire\nwhether officials regarded the document as binding. This inquiry\nallows courts to distinguish between advice, which may be kept secret,\nand a government’s effective law and policy, to which a strong\npresumption of public access attaches.\n\n Plaintiffs‐Appellants, the American Civil Liberties Union and\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\nrequested documents concerning the legal authority for certain\nnational security programs from Defendants‐Appellees, several\nfederal agencies (jointly, “the Government”). After exhausting\nadministrative remedies, the ACLU filed suit under the Freedom of\nInformation Act (“FOIA”), requesting that the District Court compel\ndisclosure. To defend the withholdings, the Government invoked\nspecific statutory exemptions, including FOIA Exemption 5, which\nprotects from disclosure attorney‐client and deliberative\ncommunications. The District Court (Kimba M. Wood, Judge) granted\nsummary judgment in the Government’s favor, holding that the\n\n\n\n\n 4\n\fagencies properly withheld the documents under FOIA. On appeal,\nthe ACLU argues that Exemption 5 does not apply because the\nGovernment adopted or incorporated the disputed documents when\nit “relied on” the legal advice contained therein. We conclude that\nunder Exemption 5, an agency (1) “adopts” a previously privileged\ndocument where the agency’s statements or behavior indicate that the\nagency treats the document as binding authority, and (2)\n“incorporates” a previously privileged document “by reference”\nwhere a formal agency opinion or decision explicitly relies on that\ndocument and its reasoning. We find no such adoption or\nincorporation to have occurred in this case. Accordingly, we affirm the\njudgment of the District Court.\n\n I. BACKGROUND\n\n A. Executive Order 12,333 and the ACLU’s FOIA Request\n\n On December 4, 1981, President Reagan issued Executive Order\n12,333 (“EO 12,333”), entitled “United States Intelligence Activities.”1\nThe order sought to regulate the “effective conduct of United States\nintelligence activities” and “protect[ ] . . . constitutional rights.”2\nAmended numerous times over the last four decades, EO 12,333 has\nlong served as a “principal Executive Branch authority for foreign\nintelligence activities.”3 Today, it remains “one of the primary\n\n 1 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981).\n 2 Id.\n 3President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty\nand Security in a Changing World: Report and Recommendations of the Presidentʹs\n\n\n\n\n 5\n\fauthorities that allow agencies of the intelligence community . . . to\ngather foreign intelligence.”4\n\n In the wake of the terrorist attacks of September 11, 2001 and the\nsubsequent expansion of intelligence operations, EO 12,333 became\nthe subject of renewed public attention. On May 13, 2013, the ACLU\nsubmitted requests to several federal agencies “seeking the release of\nrecords that describe the government’s understanding of its\nsurveillance authority under [EO] 12,333” and “the rules that regulate\nthe government’s acquisition, retention, use, and dissemination of the\ncommunications of Americans swept up in that surveillance.”5 In\nrequesting the documents, the ACLU invoked FOIA, a federal statute\nenacted in 1966 that facilitates the public release of most government\nrecords.6\n\n The agencies resisted disclosing the requested records. On\nDecember 30, 2013, after exhausting administrative remedies, the\n\nReview Grp. on Intelligence and Commcʹns Techs 69 (Dec. 12, 2013),\nhttps://obamawhitehouse.archives.gov/sites/default/files/docs/2013‐12‐\n12_rg_final_report.pdf.\n\n Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 09198\n 4\n\n(KMW)(JCF), 2017 WL 1155910, at *1 (S.D.N.Y. Mar. 27, 2017) (“ACLU I”).\n 5 Joint Appendix (“J.A.”) 24. The ACLU submitted the requests to the\nCentral Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau\nof Investigation, the National Security Agency, the United States Department of\nState, the National Security Division, and the Office of Legal Counsel. See ACLU I,\n2017 WL 1155910, at *2.\n 6See 5 U.S.C. § 552; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132,\n136 (1975).\n\n\n\n\n 6\n\fACLU filed suit under FOIA’s cause‐of‐action provision, seeking to\ncompel the release of the documents.7\n\n During the litigation, the Government voluntarily produced\nhundreds of pages of responsive material. Nevertheless, the\nGovernment continued to withhold certain documents, claiming they\nwere exempt from disclosure under specific statutory exemptions.\n\n In early 2016, the parties cross‐moved for summary judgment\nregarding the lawfulness of the Government’s decision to withhold the\ndocuments. On March 27, 2017, the District Court denied the ACLU’s\nmotion in full, and granted the Government’s motion in part,\napproving the Government’s decision to withhold most documents,\nbut requiring more detailed justifications for several remaining\ndocuments. The District Court then reviewed supplementary briefing\nfrom both sides on renewed cross‐motions for summary judgment\nwith respect to the remaining documents. On August 17, 2017, the\nDistrict Court granted the Government’s renewed motion for\n\n\n\n\n 7 Under FOIA, requesting parties may petition a district court “to enjoin\nthe agency from withholding agency records and to order the production of any\nagency records improperly withheld from the complainant.” 5 U.S.C.\n§ 552(a)(4)(B). District courts must review an agency’s decision to withhold\nrecords de novo to ensure that the decision complies with FOIA’s substantive\nrequirements. Id. The agency, meanwhile, bears the burden of “sustain[ing] its\naction”—i.e., the decision to withhold. Id.\n\n\n\n\n 7\n\fsummary judgment and denied the ACLU’s cross‐motion.8 Judgment\nwas entered on August 22, 2017.\n\n B. The Contested Documents\n\n On appeal, the ACLU contests the District Court’s rulings with\nrespect to seven documents. 9\n\n OLC 10. The first document, “OLC 10,” is a 108‐page\nmemorandum, dated May 6, 2004, from the Assistant Attorney\nGeneral for the Office of Legal Counsel (“OLC”), Jack L. Goldsmith,\nIII, to Attorney General Alberto Gonzales. The general functions of the\nOLC include “assisting the Attorney General in the performance of his\nfunctions as legal adviser to the President” in part by “advising as to\nthe [ ] form and legality” of Executive orders and actions.10 The OLC\nmemorandum, titled “Re: Review of the Legality of the STELLAR\nWIND Program,” examines a “highly classified and strictly\n\n 8 See Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\n(JCF), 2017 WL 6387731, at *1 (S.D.N.Y. Aug. 17, 2017) (“ACLU II”).\n 9 Initially, the ACLU also challenged the decision to withhold an eighth\ndocument, “OLC 8.” While this appeal was pending, however, the Government\nreprocessed and released most of that document. Accordingly, the ACLU is “no\nlonger seeking disclosure of that memorandum.” Reply Br. Appellants 3 n.1.\n 10 28 C.F.R. § 0.25; see also Citizens for Responsibility & Ethics in Washington\nv. U.S. Dep’t of Justice, 846 F.3d 1235, 1238 (D.C. Cir. 2017) (discussing the role of\nOLC generally); Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting)\n(explaining that the role of Assistant Attorney General for OLC is “a post that has\ntraditionally had responsibility for providing legal advice to the President (subject\nto approval of the Attorney General)”). Justice Scalia, like Chief Justice Rehnquist\nbefore him, served in this role.\n\n\n\n\n 8\n\fcompartmented program of electronic surveillance” authorized by\nPresident George W. Bush in response to the attacks of September 11,\n2001.11 The memorandum reviews the program’s history and analyzes\nits legality under EO 12,333, applicable statutes, and the United States\nConstitution.12\n\n The District Court concluded that OLC 10 is exempt from\ndisclosure under FOIA Exemption 5 because the document is both an\nattorney‐client communication and a deliberative, pre‐decisional\ngovernment memorandum.\n\n Intelligence Program Documents. The remaining six documents13\neach contains legal advice from Department of Justice attorneys\nconcerning “[National Security Agency (“NSA”)] programs or other\nintelligence activities.”14\n\n According to a sworn declaration from a senior NSA official,\nfive of these six documents (NSD 12, 13, 14, and 33, and NSA 11)\nconcern “particular intelligence sources, and related methods used to\n\n\n\n\n 11 J.A. 276‐77.\n 12 See id. at 276‐351.\n 13 The documents are identified individually as NSA 11 and NSD 12, 13,\n14, 33, and 49. Collectively, we refer to them as “the intelligence program\ndocuments.”\n 14 ACLU I, 2017 WL 1155910, at *14 (NSA 11); id. at *12 (NSD 12, 13, 14, 33,\nand 49).\n\n\n\n\n 9\n\fcollect and process foreign communications.”15 The disclosure of these\ndocuments “would [therefore] demonstrate the capabilities and\nlimitations” of the United States’ signals intelligence systems.16\nSimilarly, disclosure of the sixth document (NSD 49) would “tend[ ] to\nidentify the targets of intelligence‐gathering efforts, reveal the specific\ncollection techniques and methods employed, and contain details\nconcerning the locations and timing of that collection.”17\n\n The District Court held that FOIA exempts these six intelligence\nprogram documents from disclosure because they contain classified\nand sensitive national security information.18\n\n C. The Government’s Public Statements\n\n It is undisputed that the contested documents have never been\nreleased in unredacted form. The Government has, however,\ndiscussed similar subject matter in several public statements. A central\nissue on appeal is whether these public statements—delivered over a\nperiod of 13 years—undermine the Government’s claims of attorney‐\nclient and deliberative process privilege with respect to OLC 10.\n\n\n\n 15J.A. 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\nPolicy and Records).\n 16 Id. at 154 ¶ 39.\n 17Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\n(JCF), Dkt. No. 60 at 15 ¶ 16 (Declaration of Antoinette B. Shiner, Information\nReview Officer for the Litigation Information Review Office, CIA).\n 18 ACLU II, 2017 WL 6387731, at *6.\n\n\n\n\n 10\n\f First, in a December 19, 2005 White House press briefing,\nAttorney General Gonzales discussed the “legal underpinnings” of the\nStellar Wind program.19 In that briefing, Gonzales explained that the\nprogram was authorized by Congress’s 2001 Authorization for the Use\nof Military Force (“AUMF”), and was in any event a legal exercise of\nthe President’s inherent constitutional authority as Commander‐in‐\nChief. Gonzales did not mention OLC opinions in his prepared\nremarks, and when asked about the possibility of releasing an OLC\nopinion, responded, “Iʹm not confirming the existence of opinions or\nthe non‐existence of opinions. I’ve offered up today our legal analysis\nof the authorities of this President.”20\n\n Second, on January 19, 2006, the Department of Justice\ntransmitted to Congress a “White Paper” entitled “Legal Authorities\nSupporting the Activities of the National Security Agency Described\nby the President.”21 According to an accompanying letter, the\ndocument was “prepared by the Department of Justice to provide a\ndetailed analysis of the legal basis” for certain NSA activities initiated\n\n\n 19 Office of the Press Sec’y, Press Briefing by Attorney General Alberto\nGonzales and General Michael Hayden, Principal Deputy Director for National\nIntelligence, WHITE HOUSE, (Dec. 19, 2005), https://georgewbush‐\nwhitehouse.archives.gov/news/releases/2005/12/20051219‐1.html (“2005 Press\nBriefing”).\n 20 Id.\n 21 Legal Authorities Supporting the Activities of the National Security Agency\nDescribed by the President, DEP’T OF JUST. (Jan. 19, 2006),\nhttps://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op\n‐olc‐v030‐p0001.pdf (“White Paper”).\n\n\n\n\n 11\n\fin the aftermath of the September 11, 2001 attacks.22 The White Paper\nbriefly describes NSA surveillance activities and discusses their\nlegality in light of the ongoing threat from Al‐Qaeda and pursuant to\nstatutory authorities and the United States Constitution. The paper\ncontains “[m]uch of the legal reasoning” first articulated in OLC 10.23\n\n Third, on February 6, 2006, Attorney General Gonzales stated,\nduring a hearing before the Senate Judiciary Committee, that he\n“agreed with the [Office of Legal Counsel’s] legal analysis” concerning\nthe Stellar Wind program.24\n\n Fourth, on July 10, 2009, the Inspectors General of five agencies\ncompleted and submitted a classified 747‐page comprehensive report\nconcerning the Stellar Wind program (“the Joint IG Report”) to several\ncommittees of Congress.25 At the same time, the Inspectors General\n\n\n\n 22 Id. at 1.\n 23 Offices of Inspectors General, Report on the President’s Surveillance\nProgram, Vol. 1 at 49 (July 10, 2009), https://oig.justice.gov/reports/2015/PSP‐09‐18‐\n15‐full.pdf (“Joint IG Report”).\n 24 Wartime Executive Power and the National Security Agency’s Surveillance\nAuthority: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 55 (2006),\navailable at 2006 WL 270364 (“2006 Hearing”).\n 25 The report was prepared by the Inspectors General of the Department of\nJustice, Department of Defense, Office of the Director of National Intelligence,\nCIA, and NSA. It was delivered to the Senate Select Committee on Intelligence,\nthe Senate Committee on the Judiciary, the House Permanent Select Committee\non Intelligence, and the House Committee on the Judiciary. See Joint IG Report\nnote 23, ante, at iii.\n\n\n\n\n 12\n\falso publicly released a shorter, unclassified version of the report;26 the\nGovernment did not declassify and release a redacted version of the\nfull report until April 2015.27 The full report discusses the drafting of\nOLC 10 under the heading “A New Legal Basis for the Program Is\nAdopted.”28\n\n Fifth, in February 2016, the Government made public a\npreviously classified letter (“OLC 9”) from Deputy Assistant Attorney\nGeneral John C. Yoo to Judge Colleen Kollar‐Kotelly, then Presiding\nJudge of the Foreign Intelligence Surveillance Court. 29 The letter,\ndated May 17, 2002, “discusses the President’s power to deploy\nexpanded electronic surveillance techniques” and “outlines the legal\njustifications for such surveillance.”30\n\n Finally, while this appeal was pending, the Government\nreprocessed and released a less‐redacted version of an additional\n\n 26 See Offices of Inspectors General, Unclassified Report on the President’s\nSurveillance Program (July 10, 2009), available at\nhttps://oig.justice.gov/special/s0907.pdf.\n 27IC on the Record Database: Results, OFF. OF THE DIRECTOR OF NAT’L\nINTELLIGENCE, https://www.intelligence.gov/ic‐on‐the‐record‐database/advanced‐\nsearch?keyword=&date=9&sdate=03%2F31%2F2015&edate=05%2F01%2F2015&t\nopic=&catid=#results (indicating April 25, 2015 as the date of publication); see also\nCharlie Savage, Government Releases Once‐Secret Report on Post‐9/11 Surveillance, N.\nY. TIMES (April 24, 2015) available at\nhttps://www.nytimes.com/interactive/2015/04/25/us/25stellarwind‐ig‐report.html.\n 28 See Joint IG Report, note 23, ante, at 37‐39.\n 29 J.A. 253‐54, 257.\n 30 See id. at 393.\n\n\n\n\n 13\n\fdocument, “OLC 8.” This document, a November 2, 2001\nmemorandum written by Deputy Assistant Attorney General Yoo,\nexplains, inter alia, “legal issues pertaining to surveillance under E.O\n12333.”31\n\n II. DISCUSSION\n\n We review a district court’s grant of summary judgment in\nFOIA litigation de novo.32\n\n In conducting our review, we first clarify the scope of FOIA and\nits exemptions, as well as the concepts of “working law,” “adoption”\nand “incorporation.” Applying these principles, we affirm the\nconclusion of the District Court that OLC 10 is exempt from disclosure\nunder FOIA Exemption 5. We similarly affirm its conclusion that the\nsix intelligence program documents are exempt from disclosure under\nFOIA Exemptions 1 and 3. Finally, we reject the ACLU’s request that\nwe “order the re‐processing of the documents,” that is, compel the\nagencies to once again review the contested documents to ensure that\nonly privileged and undisclosed, classified information is redacted.33\n\n\n\n\n 31 Id. at 259.\n 32See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 112 (2d\nCir. 2014) (“N.Y. Times I”); see also Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999)\n(declining to “depart from a pure de novo standard”).\n 33 Br. Appellants 47.\n\n\n\n\n 14\n\f A. FOIA and its Exemptions\n\n Passed in 1966, FOIA was intended to “permit access to official\ninformation long shielded unnecessarily from public view.”34 FOIA\nthus establishes a default rule in favor of Government disclosure,\nproviding that an “agency, upon any request for records which\n(i) reasonably describes such records and (ii) is made in accordance\nwith published rules . . . shall make the records promptly available to\nany person.”35 As the Supreme Court has explained, “virtually every\ndocument generated by an agency is available to the public in one form\nor another, unless it falls within one of the [FOIA]’s nine\nexemptions.”36 In accordance with FOIAʹs purposes, the statutory\nexemptions are “narrowly construed.”37\n\n Our case concerns three of these exemptions: Exemption 1\nexempts records that have been properly classified “in the interest of\nnational defense or foreign policy.”38 Exemption 3 exempts records\nthat a statute other than FOIA prohibits from disclosure.39 Finally,\n\n\n\n\n 34 Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).\n 35 5 U.S.C. § 552(a)(3)(A).\n 36 Sears, 421 U.S. at 136.\n 37F.B.I. v. Abramson, 456 U.S. 615, 630 (1982); see also Natʹl Council of La Raza\nv. Depʹt of Justice, 411 F.3d 350, 356 (2d Cir. 2005).\n 38 5 U.S.C. § 552(b)(1)(A).\n 39 Id. § 552(b)(3).\n\n\n\n\n 15\n\fExemption 5 exempts records that would be privileged in litigation.40\nThe District Court upheld the redaction of OLC 10 under Exemption\n5, and the decision to withhold the intelligence program documents\nunder Exemptions 1 and 3. We review each holding in turn.\n\n B. OLC 10 and FOIA Exemption 5\n\n Exemption 5 exempts from FOIA’s disclosure requirements\n“inter‐agency or intra‐agency memorandums [sic] or letters that\nwould not be available by law to a party other than an agency in\nlitigation with the agency.”41 This exemption “incorporate[s] into the\nFOIA all the normal civil discovery privileges,”42 including\n“traditional common law privileges against disclosure” such as “the\nattorney‐client and deliberative process privileges.”43 Here, the\nDistrict Court upheld the redaction of OLC 10 pursuant to both\nprivileges.44 We agree.\n\n 1. The Attorney‐Client Privilege\n\n As we have explained in prior decisions, “[t]he attorney‐client\nprivilege protects confidential communications between client and\ncounsel made for the purpose of obtaining or providing legal\n\n\n 40 Id. § 552(b)(5).\n 41 Id.\n 42 Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991).\n 43 N.Y. Times I, 756 F.3d at 104.\n 44 ACLU I, 2017 WL 1155910, at *10.\n\n\n\n\n 16\n\fassistance.”45 The privilege functions to “encourage attorneys and\ntheir clients to communicate fully and frankly and thereby to promote\nbroader public interests in the observance of law and administration\nof justice.”46\n\n In the context of legal advice to government officials, “the\nprivilege furthers a culture in which consultation with government\nlawyers is accepted as a normal, desirable, and even indispensable\npart of conducting public business. Abrogating the privilege\nundermines that culture and thereby impairs the public interest.”47\nThe public interest in ensuring that government officials receive sound\nlegal advice is at its apex when the programs about which advice is\nsought are secret and unlikely to be subject to litigation. In such cases,\nthe frank exchange between government officials and their attorneys\nserves as a crucial—and maybe the only—safeguard in ensuring the\nlegality of government action.\n\n The scope of the privilege follows directly from these purposes.\nThe privilege protects “communications (1) between a client and his\nor her attorney (2) that are intended to be, and in fact were, kept\n\n\n\n\n 45 In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007).\n 46 Id. (internal quotation marks omitted); see also Upjohn Co. v. United\nStates, 449 U.S. 383, 389 (1981) (explaining that one purpose of the privilege is “to\nencourage clients to make full disclosure to their attorneys” (internal quotation\nmarks omitted)).\n 47 In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).\n\n\n\n\n 17\n\fconfidential (3) for the purpose of obtaining or providing legal\nadvice.”48\n\n OLC 10 meets these requirements easily. First, as reflected in the\nindex the Government provided to the ACLU, OLC 10 was prepared\nby an OLC attorney (Assistant Attorney General Goldsmith) for an\nExecutive Branch client (the Attorney General, and eventually, the\nPresident).49 The document is thus a communication between an\nattorney and a client.\n\n Second, the memorandum was written with the understanding\nthat “OLC legal advice is generally kept confidential,”50 it was\n“communicated in confidence,”51 and “none of [its redacted portions]\nhave been previously publicly disclosed.”52 The redacted sections of\nOLC 10 were thus intended to be, and actually were, kept confidential.\n\n And third, by its own description, OLC 10 is one in a series of\nmemoranda which “advised” the Attorney General that certain\npresidential actions “would satisfy relevant constitutional\nstandards.”53 Moreover, as we have previously explained, OLC\n\n 48 United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Brennan\nCtr. for Justice v. U.S. Depʹt of Justice, 697 F.3d 184, 207 (2d Cir. 2012).\n 49 J.A. 259, 276‐77; see also note 10, ante (citing Morrison, 487 U.S. at 700).\n 50 Id. at 244 ¶ 3 (Declaration of Paul P. Colborn, Special Counsel, OLC).\n 51 Id. at 250 ¶ 19.\n 52 Id. at 256 ¶ 34.\n 53 Id. at 284.\n\n\n\n\n 18\n\fmemoranda “provide, in their specific contexts, legal advice as to what\na department or agency is permitted to do.”54 The communication thus\nprovided legal assistance.55\n\n The ACLU does not seriously challenge this analysis. Instead, it\nargues that while OLC 10 was initially protected by the attorney‐client\nprivilege, the Government subsequently waived the privilege through\n“official acknowledgments” and “public reliance.”56\n\n The ACLU’s assertion of a doctrine of waiver by “official\nacknowledgment” reflects a basic misunderstanding of the attorney‐\nclient privilege. This privilege protects confidential communications\nbetween an attorney and a client. The “official acknowledgment”\ndoctrine, however, precludes the Government from withholding\n\n\n\n\n 54New York Times Co. v. U.S. Depʹt of Justice, 806 F.3d 682, 687 (2d Cir. 2015)\n(“N.Y. Times II”) (internal quotation marks and emphasis omitted).\n 55 That the Attorney General might have transmitted OLC 10 to the White\nHouse does not change our analysis. As the OLC declarant explained, “[t]he\nprincipal function of OLC is to assist the Attorney General in her role as legal\nadviser to the President of the United States and to departments and agencies of\nthe Executive Branch.” J.A. 244 ¶ 2; see also 28 C.F.R. § 0.25 (OLC advises as to the\n“form and legality” of proposed Executive orders, proclamations and regulations\n“prior to their transmission to the President.”). Accordingly, if OLC 10 was\ntransmitted to the White House, then this transmission is also a communication\nbetween an attorney (the Attorney General) and a client (the White House);\nintended to be and kept confidential; and offered for the purpose of advising the\nPresident of the law governing a proposed action. Id. at 277, 284.\n 56 Br. Appellants 34‐35.\n\n\n\n\n 19\n\finformation on the basis that it is classified after the Government has\ndisclosed substantially the same information.57\n\n But such informational disclosures have no effect on whether a\ncommunication is protected by the attorney‐client privilege.58 The\nattorney‐client privilege “protects communications rather than\ninformation.”59 We have therefore explained that the attorney‐client\nprivilege is not “lost by the mere fact that the information\ncommunicated [between attorney and client] is otherwise available to\nthe public.”60 The concept of “official acknowledgment” is thus\nirrelevant to the Exemption 5 inquiry and cannot provide an\nindependent basis for overcoming Exemption 5.61\n\n\n\n See N.Y. Times I, 756 F.3d at 119‐20. The principle underlying the “official\n 57\n\nacknowledgment” doctrine is intuitive: once information is no longer secret, it\ncannot be protected simply “because it is secret.”\n 58Upjohn, 449 U.S. at 395 (explaining that the attorney‐client privilege\n“protects disclosure of communications; it does not protect disclosure of the\nunderlying facts”).\n\n In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032,\n 59\n\n1037 (2d Cir. 1984).\n 60 United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982); see\nalso In re Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158,\n1165 (2d Cir. 1992) (discussing generally the difference between information‐\nbased and communication‐based privileges).\n\n This concept is instead suitable for the Exemptions 1 and 3 inquiries,\n 61\n\nwhere the Government seeks to withhold documents on the ground that they\ncontain classified information. See, e.g., N. Y. Times I, 756 F.3d at 113, 120 (outlining\nthe “three‐part test for ‘official disclosure,’ relevant to Exemption 1”).\n\n\n\n\n 20\n\f By contrast, there is precedent for the ACLU’s argument that the\nGovernment’s “public reliance” on a document erodes its otherwise\nprivileged status. While we have not used the precise phrase “public\nreliance,” we have indeed held that “the attorney‐client privilege may\nnot be invoked to protect a document adopted as, or incorporated by\nreference into, an agency’s policy.”62\n\n This rule—that an incorporated or adopted document is no\nlonger protected by privilege—mirrors the general “fairness doctrine”\nthat governs the implicit waiver of privilege during litigation.63 As we\nhave previously explained, “courts have found waiver by implication\nwhen a client testifies concerning portions of the attorney‐client\ncommunication . . . and when a client asserts reliance on an attorneyʹs\nadvice as an element of a claim or defense.”64 And so we have\nconsistently rejected parties’ attempts to withhold attorney‐client\ncommunications from a litigation adversary while relying on the same\nmaterial to advance a claim in court.65 To put it simply, in court, a party\n\n\n\n 62 La Raza, 411 F.3d at 360.\n 63 See In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); see also Brennan Ctr.,\n697 F.3d at 208 (“A party’s reliance on an otherwise privileged communication to\nassert a claim or defense is similar to the type of express adoption or\nincorporation by reference that vitiates Exemption 5 protection”).\n 64Cnty. of Erie, 546 F.3d at 228 (quoting Sedco Int’l S.A. v. Cory, 683 F.2d\n1201, 1206 (8th Cir.1982)) (internal brackets and ellipses omitted).\n 65John Doe Co. v. United States, 350 F.3d 299, 303 (2d Cir. 2003); see also\nGeorge A. Davidson & William H. Voth, Waiver of the Attorney‐Client Privilege, 64\nOR. L. REV. 637, 646‐53 (1986).\n\n\n\n\n 21\n\fmay not wield a privileged communication as both a “shield and a\nsword.”66\n\n A similar principle applies when the Government “adopts” or\n“incorporates” a previously privileged document as its effective law\nand policy.67 Just as a litigating party may not offer a privileged\ncommunication to invoke the law while maintaining the privilege, so\ntoo the Government may not expressly adopt a privileged\ncommunication as its effective law or policy while maintaining the\nprivilege. As we explain below, however, in this case the Government\nhas neither expressly “adopted” OLC 10, nor “incorporated [it] by\nreference.”68\n\n 2. The Deliberative Process Privilege\n\n In addition to the attorney‐client privilege, OLC 10 also meets\nthe requirements of the “deliberative process privilege.”\n\n Like the attorney‐client privilege, the deliberative process\nprivilege ensures “frank discussion” and protects agencies from being\n“forced to operate in a fishbowl.”69 But whereas the attorney‐client\nprivilege promotes legal compliance in particular, the deliberative\n\n 66 In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).\n\n See Brennan Ctr., 697 F.3d at 195 (holding that Exemption 5 does not\n 67\n\napply “when the contents have been adopted, formally or informally, as the\nagency position on an issue”).\n 68 See Section II.3.b at 37‐40, post.\n 69 Mink, 410 U.S. at 87 (internal quotation marks omitted).\n\n\n\n\n 22\n\fprocess privilege promotes reasoned policy‐making in general. As the\nSupreme Court has explained, “the frank discussion of legal or policy\nmatters in writing might be inhibited if the discussion were made\npublic,” and “the decisions and policies formulated would be the\npoorer as a result.”70 Accordingly, a document may be withheld\npursuant to this privilege if it is: “(1) predecisional, i.e., prepared in\norder to assist an agency decisionmaker in arriving at his decision, and\n(2) deliberative, i.e., actually . . . related to the process by which policies\nare formulated.”71\n\n We think it clear that OLC 10 meets these criteria as well. As we\nhave previously recognized, “OLC does not purport, and in fact lacks\nauthority, to make policy decisions. OLC’s legal advice and analysis\ninforms the decisionmaking of Executive Branch officials on matters\nof policy, but OLC’s legal advice is not itself dispositive as to any\npolicy adopted.”72 Moreover, the unredacted portions of OLC 10 make\nclear that OLC’s role in the Stellar Wind authorization process was\nexclusively predecisional and deliberative. The document responds to\n\n\n 70 Sears, 421 U.S. at 150‐51 (internal quotation marks omitted). Although\nSears discusses an “executive privilege” rather than a “deliberative process\nprivilege,” we have held that “[t]he deliberative process privilege . . . is\nencompassed within the executive privilege.” Grand Cent. Pʹship, Inc. v. Cuomo,\n166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks omitted).\n 71 La Raza, 411 F.3d at 356 (internal quotation marks omitted).\n 72 Brennan Ctr., 697 F.3d at 203 (citing an OLC declaration); see also N.Y.\nTimes II, 806 F.3d at 687 (“OLC documents are not working law. At most, they\nprovide, in their specific contexts, legal advice as to what a department or agency\nis permitted to do.” (internal quotation marks omitted)).\n\n\n\n\n 23\n\fthe Attorney General’s request that OLC undertake a “thorough\nreexamination” of the legality of presidential directives concerning\nStellar Wind.73 As OLC 10 explains, the Attorney General would\nconsult OLC advice (such as OLC 10) in choosing whether to approve\nthe program “as to form and legality.”74 OLC 10 thus preceded and\ndirectly related to the Attorney General’s approval decision.75\n\n 3. The Limits of Exemption 5\n\n As we have previously explained, “[j]ust because a document\nsatisfies [the above] requirements, however, does not mean that the\ndeliberative process [or attorney‐client] privilege bars its disclosure.”76\nThe ACLU therefore relies on three doctrines (which it calls\n“exceptions”) to argue that the Government must release additional\nportions of OLC 10.77 The ACLU claims (1) that OLC 10 contains\n“working law,”78 (2) that OLC 10 was “adopted,” or (3) that OLC 10\n\n 73 J.A. 277.\n 74 Id. at 284.\n 75Indeed, the Attorney General’s approval of the Stellar Wind program “as\nto form and legality” was itself merely a predecisional and deliberative step\nbefore the actual policy decision was made by the President—i.e., the decision to\nreauthorize Stellar Wind. Id.\n\n 76 La Raza, 411 F.3d at 356.\n 77 Properly understood, these doctrines are not “exceptions” to Exemption\n5 at all. Rather, they are tell‐tale indicators that, notwithstanding its appearance, a\ndocument simply is not protected by the deliberative process and attorney‐client\nprivileges.\n 78 Br. Appellants 18‐23.\n\n\n\n\n 24\n\fwas “incorporated by reference” as agency policy.79 Although each of\nthese terms emerges from our caselaw, ACLU’s arguments reveal that\nour prior decisions have not yet adequately defined these concepts and\nthe relationship between them. We therefore accept the parties’\ninvitation to clarify the contours of Exemption 5 and the doctrines that\ndefine its limits.\n\n a. Effective Law and Policy\n\n The Supreme Court first provided clear guidance regarding the\nlimits of FOIA Exemption 5 in 1975 in N.L.R.B v. Sears, Roebuck & Co.80\nDrawing a clear distinction between deliberative material and\ndocuments that embody law and policy, the Supreme Court explained:\n\n Exemption 5, properly construed, calls for disclosure of\n all opinions and interpretations which embody the\n agency’s effective law and policy, and the withholding of\n all papers which reflect the agency’s group thinking in the\n process of working out its policy and determining what\n its law shall be.81\n\n The logic of this dichotomy is straightforward. The deliberative\nprocess privilege protects “communications received by the\ndecisionmaker on the subject of the decision prior to the time the\n\n\n 79 Id. at 23‐25.\n 80 421 U.S. 132 (1975).\n 81 Id. at 153 (internal quotation marks omitted).\n\n\n\n\n 25\n\fdecision is made” to ensure that the subsequent decision will be fully\ninformed.82 By contrast, there is little need to preserve the\nconfidentiality of discussions that take place after a decision has been\nmade and rendered as the agency’s “effective law and policy.”83\n\n Although the conceptual distinction between pre‐decisional\nadvice and post‐decisional explanation is clear, these materials might\nlook quite similar in practice. For instance, a letter advising an agency’s\nleader on how to interpret a statute could look identical to a letter\ninforming an agency subordinate about how the agency interprets a\nstatute.\n\n In light of the potential for conflation, the doctrines of “working\nlaw,” “express adoption,” and “incorporation by reference” assist\ncourts in applying this conceptual distinction.84 As we now explain,\n“working law” describes a category of post‐decisional material, and\n“express adoption” and “incorporation by reference” describe two\nmethods by which pre‐decisional material can become post‐decisional.\n\n\n\n\n 82 Id. at 151‐53.\n 83 See id.\n 84 See Brennan Ctr., 697 F.3d at 201 (“The question of whether a document\nconstitutes working law, or has been expressly adopted or incorporated by\nreference, then, are two paths to determining whether a withheld document\nconstitutes what FOIA affirmatively requires to be disclosed.” (internal quotation\nmarks omitted)).\n\n\n\n\n 26\n\f i. Working Law\n\n As might be expected from the phrase itself, a document\nembodies an agency’s “working law” when the document binds\nagency officials or members of the public. In other words, working law\nannounces what an agency’s law is, not what the law might be. Because\nsuch a document has operative effect—i.e., binding rather than\npersuasive power—it is inherently post‐decisional.\n\n In reaching this conclusion, we find instructive certain cases of\nthe Court of Appeals for the District of Columbia Circuit (the “D.C.\nCircuit”), to which we have referred as “a specialist” in differentiating\nprivileged material from working law.85 The D.C. Circuit has\nrepeatedly employed a functional test to determine whether a\ndocument constitutes “working law,” inquiring whether the agency\ntreats the document as binding.\n\n For instance, in Coastal States Gas Corp. v. Department of Energy,\nthe case from which the working law doctrine emerged, the D.C.\nCircuit held that when an agency circulated and consulted certain\ndocuments as a source of binding authority, these documents were a\npost‐decisional “functioning body of secret law.”86 In that case, the\nplaintiffs sought disclosure of agency “memoranda from regional\ncounsel to auditors . . . issued in response to requests for\ninterpretations of regulations within the context of particular facts\n\n\n 85 Id. at 200.\n 86 617 F.2d 854, 866 (D.C. Cir. 1980) (internal quotation marks omitted).\n\n\n\n\n 27\n\fencountered while conducting an audit of a firm.”87 Evidence revealed\nthat agency auditors did not simply regard the contested memoranda\nas persuasive or advisory, but that the memoranda “were retained and\nreferred to as precedent.”88 In particular, the D.C. Circuit determined\nthat auditors could not “freely disregard[]” these memoranda, but\nwould request they be “rescinded, amended, or referred to a higher\nauthority.”89 Bound by the directions contained therein, agency\nauditors then “actually applied” these directions in their “dealings\nwith the public.”90 These features led the D.C. Circuit to conclude that\nthe memoranda were not simply pre‐decisional legal advice, but the\nproduct of the decision‐making process. The agency had, through the\ncirculation of these documents, “promulgated a body of secret law.”91\n\n Similarly, in Tax Analysts v. Internal Revenue Service, the D.C.\nCircuit found that legal memoranda issued by the IRS’s Office of Chief\nCounsel to officials in the field constituted “working law” even though\nthe memoranda were “nominally non‐binding.”92 Despite their\nnominally advisory status, the memoranda had been distributed to\nensure “the promotion of uniformity throughout the country on\n\n\n 87 Id. at 858.\n 88 Id. at 869.\n 89 Id.\n 90 Id.\n 91 Id.\n 92 117 F.3d 607, 617 (D.C. Cir. 1997).\n\n\n\n\n 28\n\fsignificant questions of tax law.”93 Because these memoranda\nfunctioned as precedent rather than mere guidance, the D.C. Circuit\nconcluded that they constituted “working law” rather than pre‐\ndecisional advice.94\n\n As we have previously noted, “[o]ur Court has relatively little\ncase law examining the ‘working law’ principle.”95 Those few\nprecedents we do have, however, are entirely consistent with the\nprinciple that emerges from the D.C. Circuit cases—namely, that\nworking law must be binding.96\n\n To decide the instant case, we need not reach a comprehensive\ndefinition of “working law.” But we do identify a few guiding\nprinciples to district courts faced with the task of determining whether\na document is functionally binding and hence, “working law.” Such\nprinciples include: whether agency officials feel free to disregard the\ndocument’s instructions;97 whether an agency superior distributes the\n\n\n\n\n 93 Id. (internal quotation marks omitted).\n 94 Id. at 619.\n 95 Brennan Ctr., 697 F.3d at 201.\n 96 See id. at 198 (equating “working law” with “final opinions” or reports\nthat have “operative effect”); N.Y. Times II, 806 F.3d at 687 (explaining that OLC\nopinions are not “working law” subject to disclosure because “[a]t most, they\nprovide, in their specific contexts, legal advice as to what a department or agency\nis permitted to do” (internal quotation marks omitted)).\n 97 See Coastal States, 617 F.2d at 869.\n\n\n\n\n 29\n\fdocument to subordinates (rather than vice versa); 98 whether agency\nsuperiors direct their subordinates to follow the document’s\ninstructions;99 whether the document is applied in the agency’s\ndealings with the public;100 and whether failure to follow a document’s\ninstructions provides cause for professional sanction. These factors all\nprovide indications as to whether a document has become binding on\nagency officials and therefore represents an agency’s “effective law\nand policy.”101\n\n ii. Express Adoption\n\n Occasionally, documents drafted as pre‐decisional material will\nultimately be recycled and reissued as an agency’s “working law.” The\ndoctrine of “express adoption” describes a process by which courts can\ndiscern whether a document first drafted as legal or policy advice has\nbecome an agency’s “effective law and policy.”\n\n For instance, an agency’s director might receive a memorandum\nfrom counsel advising him or her how to conduct a program in\naccordance with law. The director might then distribute that\ndocument to subordinates with instructions to obey the advice\nrendered therein. After such distribution, the document is no longer\nprivileged. The reason is straightforward: while the initial\n\n 98 See Jordan v. U.S. Depʹt of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).\n 99 Id.\n 100 Coastal States, 617 F.2d at 866.\n 101 Sears, 421 U.S. at 153.\n\n\n\n\n 30\n\fcommunication was deliberative and pre‐decisional, the subsequent\ncommunication was a promulgation of “working law,” and therefore\npost‐decisional and no longer privileged.\n\n Because the adoption process is usually internal and hidden\nfrom public view, our Court’s “express adoption” cases have generally\nlooked for external evidence that such adoption has occurred. In New\nYork Times Co. v. Department of Justice (“New York Times I”), for instance,\nwe held that certain Government disclosures fatally undermined the\nGovernment’s claims that an (initially classified and advisory) OLC\nmemorandum was privileged.102 We noted that senior government\nofficials engaged in “an extensive public relations campaign to\nconvince the public” of the lawfulness of a government program,103\nand we observed that Attorney General Eric Holder invoked the\ndisputed OLC memorandum as authority for the purposes of that\ncampaign.104 We also highlighted the Senate testimony of then‐\nAssistant to the President for Homeland Security and\nCounterterrorism (and incoming Director of the CIA) John O. Brennan\nthat “Office of Legal Counsel advice establishes the legal boundaries\n\n\n\n\n 102 See N.Y. Times I, 756 F.3d at 116.\n 103 Id. at 114.\n 104Id. at 116; see also Oversight of the U.S. Department of Justice Before the\nSenate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013), available at\nhttps://fas.org/irp/congress/2013_hr/doj.pdf (explaining that the relevant legal\nstandard would be “more clear if it is read in conjunction with the underlying\nOLC advice”).\n\n\n\n\n 31\n\fwithin which we can operate.”105 Together, these statements revealed\nthat the OLC memorandum was no longer simply advice to a policy‐\nmaker, but that the Government afforded the memorandum binding\nforce within the Executive Branch as its “effective law and policy.”106\n\n Although less explicit, our decision in National Council of La Raza\nv. Department of Justice, rests on similar reasoning.107 In that case, we\nheld that the Department of Justice expressly adopted a 2002 OLC\n\n 105 Id. at 111; see also id. at 116. (“[T]he deliberative process privilege [and]\nthe attorney‐client privilege may not be invoked to protect a document adopted\nas, or incorporated by reference into, an agency’s policy. Here, the Government\nhas done so by publicly asserting that OLC advice ‘establishes the legal\nboundaries within which we can operate.’”) (internal quotation marks and\ncitations omitted). In context, Mr. Brennan’s statement clearly refers specifically to\nOLC advice concerning the Government’s targeted killing program. See\nNomination of John O. Brennan to be Director of the Central Intelligence Agency:\nHearing Before the S. Select Comm. on Intelligence, 113 Cong. 44 (Feb. 7, 2013)\n(“Brennan Hearing”), https://www.intelligence.senate.gov/hearings/open‐hearing‐\nnomination‐john‐o‐brennan‐be‐director‐central‐intelligence‐agency#.\n 106 To be clear, the Government’s public statements serve as express\nevidence that the Government adopted the OLC memorandum as binding on the\nCIA. The remarks themselves do not, however, constitute adoption. Indeed, Mr.\nBrennan (who was not yet CIA Director when he made these statements), lacked\nthe authority to adopt the OLC memorandum as binding authority. Adoption\noccurs when an agency itself accepts a previously deliberative document as\nbinding, or actually acts (or refrains from acting) pursuant to the binding\ninstruction (i.e., as “working law”) of that document. See Elec. Frontier Found. v.\nU.S. Depʹt of Justice, 739 F.3d 1, 11 (D.C. Cir. 2014).\n 107 La Raza, 411 F.3d at 350. Admittedly, our opinion in La Raza is\nsomewhat imprecise regarding whether “adoption” or “incorporation” provided\nthe precise basis for our decision, or even whether there is a difference between\nthe two. As we define and explain the terms, however, La Raza is best understood\nas a case of express adoption.\n\n\n\n\n 32\n\fmemorandum authorizing state governments to make arrests for civil\nviolations of federal immigration provisions.108 We noted that the\nAttorney General and his senior staff repeatedly invoked the OLC\nmemorandum not just to defend its own policy, but as embodying this\nnew policy.109 These official statements, we explained,\n“demonstrate[d] that [DOJ] regarded the Memorandum as the\nexclusive statement of . . . its new policy.”110 Moreover, DOJ’s effective\npromulgation of this OLC memorandum, as revealed in its public\nstatements, carried substantive legal effects for “what a third party—\nstate and local law enforcement—should and could lawfully do.”111 The\nstatements therefore amounted to “powerful evidence that [DOJ]\nexplicitly adopted the OLC Memorandum as part of its policy.”112\n\n Similarly, in Brennan Center for Justice v. Department of Justice, we\nfound that public statements revealed that the United States Agency\nfor International Development (“USAID”) had adopted an OLC\nmemorandum.113 In particular, we pointed to a USAID policy\n\n\n 108 Id. at 357‐58.\n 109 Id. at 353‐55.\n 110 Id. at 357.\n 111 Id. at 359 (internal quotation marks omitted).\n 112 Id. at 359–60.\n 113 Brennan Ctr., 697 F.3d at 204‐05. As in La Raza, our opinion in Brennan\nCenter is unclear about whether “adoption” or “incorporation” provided the\nprecise basis for our decision. Again, however, as we understand and explain the\nterms here, Brennan Center is best understood as a case of express adoption.\n\n\n\n\n 33\n\fdocument explaining that OLC had “determined” that a statutory\nfunding restriction “only may be applied to foreign non‐governmental\norganizations and public international organizations.”114 Later, a\nsenior USAID official confirmed that OLC’s determination had\neffectively dictated USAID’s new approach.115 Taken together, these\nUSAID statements provided powerful evidence that senior agency\nofficials related to OLC’s legal advice as binding authority, i.e. as\n“working law.” We therefore found that USAID adopted the OLC\nmemorandum.\n\n iii. Incorporation by Reference\n\n A close cousin to the doctrine of “express adoption” is the\ndoctrine of “incorporation by reference.” Much like adoption, an\nagency incorporates a document by reference when it transforms a\npreviously advisory document into binding “working law.”116 But\nwhereas in “express adoption” cases we look for indications that an\nagency relates to the document as binding, in cases of “incorporation\n\n\n\n 114 Id. at 204.\n 115Id. (citing congressional testimony of Randall Tobias, the U.S. Global\nAIDS Coordinator, who explained that he was “simply following the legislation\nand the advice to implement that”).\n 116When a party claims that a previously privileged document has been\n“incorporated by refence,” a court’s task is usually to decide whether a reference\nto that document itself promulgates the document as binding law. By contrast, in\nmost “express adoption” cases, the court inquires whether an agency’s remarks\nabout a previously privileged document provide evidence that the document has\nalready been promulgated as working law. See note 106, ante.\n\n\n\n\n 34\n\fby reference,” we identify the agency’s enactment of that document as\nits law or policy through explicit textual reference in a final decision.117\n\n The D.C. Circuit first recognized the doctrine of “incorporation\nby reference” in a 1969 case, American Mail Line, Ltd. v. Gulick.118 There,\nthe court held that by stating “publicly in [a] ruling that its action was\nbased upon [a specific] memorandum, [and] giving no other reasons\nor basis for its action,” the Maritime Subsidy Board of the Department\nof Commerce forfeited that memorandum’s “intra‐agency status” and\nincorporated it into “a public record” that “must be disclosed.”119\n\n Six years later, in Sears, the Supreme Court endorsed the D.C.\nCircuit’s approach, holding that “if an agency chooses expressly to . . .\nincorporate by reference an intra‐agency memorandum previously\ncovered by Exemption 5 in what would otherwise be a final opinion,\nthat memorandum may be withheld only on the ground that it falls\nwithin the coverage of some exemption other than Exemption 5.”120\n\n Importantly, American Mail Line and Sears limit “incorporation\nby reference” to circumstances where the disputed memorandum is\n\n\n 117 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 254 (2006) (describing an\nagency interpretive rule as “[i]ncorporating the legal analysis of a memorandum .\n. . solicited from [OLC]”); see also Dispensing of Controlled Substances To Assist\nSuicide, 66 Fed. Reg. 56,607‐02 (Nov. 9, 2001) (promulgating an interpretive rule\nwhile incorporating a memorandum from the Attorney General).\n 118 411 F.2d 696 (D.C. Cir. 1969).\n 119 Id. at 703.\n 120 421 U.S. at 161.\n\n\n\n\n 35\n\frelied on in a “final opinion” or “ruling.” To decide the instant case,\nwe need not define these terms precisely.121 But we think it clear that\nincorporation occurs only when the incorporating “opinion” is itself a\ndocument with functionally binding effect. This limitation is\nsignificant; a decisionmaker’s mere statements expressing his or her\nreliance on the reasoning of a separate memorandum do not amount\nto “incorporation” of that memorandum. The limitation is also\nsensible. Statements such as “we checked it with counsel,” or “we\nrelied on the assessments of experts” are standard responses in\ncongressional testimony or public statements. Appropriately, such\nstatements cannot “incorporate by reference” external memoranda\nbecause such statements do not themselves have binding effect, either\nwithin the agency or on the public.\n\n In sum, a previously privileged document is subject to\ndisclosure under the doctrine of “incorporation by reference” only\nwhen an agency’s formal opinion or determination of law or policy\nexpressly references and relies on that document and its reasoning as\nthe basis for a decision.\n\n b. Application\n\n The above principles dictate the outcome of this case. The ACLU\nargues that “reliance on legal analysis as a basis for its operational\n\n\n 121 Among the open issues that we do not decide: whether an incorporating\n“final opinion” must (1) be public; (2) adjudicate the rights of individual, private\nparties; or (3) have the “force and effect of law,” see Chrysler Corp. v. Brown, 441\nU.S. 281, 282 (1979).\n\n\n\n\n 36\n\fdecisions transforms that analysis into working law.”122 Not so. As we\nhave explained, a document is only “working law” when it operates\nas functionally binding authority on agency decision‐makers. Here,\nOLC 10 was drafted as legal advice rather than binding authority and\nso was not “working law” when created.123 To be sure, a document\nfirst drafted as legal advice can still be adopted as working law or\nincorporated into agency decisions. But mere agreement with a\ndocument’s reasoning and conclusion is insufficient to transform\nadvice into law. Instead, the document must be treated as binding by\nthe agency (i.e. “adoption”) or explicitly relied upon in a formal\ndecision (i.e. “incorporation by reference”).\n\n Here, there is no evidence that the Government ever “adopted”\nOLC 10 as binding; nor has the ACLU identified a single agency\nopinion that incorporates OLC 10 by reference.\n\n The ACLU’s arguments to the contrary are unavailing. The\nACLU first points to a publicly released 2006 “White Paper” that\ncontains “much of the legal reasoning” in OLC 10.124 As we have\n\n 122 Reply Br. Appellants 3‐4.\n 123See note 72, ante; see also Elec. Frontier Found., 739 F.3d at 9 (holding that\nan OLC opinion submitted to the FBI did not constitute “working law” because\n“OLC is not authorized to make decisions about the FBIʹs investigative policy, so\nthe OLC Opinion cannot be an authoritative statement of the agencyʹs policy”); see\nalso Citizens for Responsibility & Ethics in Washington v. United States Depʹt of Justice,\n922 F.3d 480, 486 (D.C. Cir. 2019) (“An OLC opinion in the latter category qualifies\nas the ‘working law’ of an agency only if the agency has ‘adopted’ the opinion as\nits own.”).\n 124 Br. Appellants 25 (brackets omitted). See also note 23, ante.\n\n\n\n\n 37\n\fexplained, however, disclosure of similar information to that contained\nin documents protected by the attorney‐client or deliberative process\nprivileges does not waive the privilege. These privileges protect a\ncommunication, not information.125\n\n Next, the ACLU contends that a series of public statements by\nthe Government indicates either that OLC 10 is working law, or that\nthe Government expressly adopted OLC 10, or that it incorporated\nOLC 10 by reference.126 In particular, the ACLU draws our attention to\n(1) a press briefing during which Attorney General Gonzalez\ndescribed OLC 10 as analyzing the “legal underpinnings” of the Stellar\nWind program;127 (2) an internal agency report, which states that OLC\n10 provided “a new legal basis” for the program;128 and (3) Attorney\n\n 125 See Section II.B.1, ante.\n 126The Government urges us not to consider certain public statements by\nthe Government that were available when the parties were before the District\nCourt, but that the ACLU did not explicitly raise in its briefing below. These\nstatements include the 2005 White House press briefing by Attorney General\nGonzales, the 2006 Senate testimony (also by Gonzales), and the 2006 DOJ White\nPaper. We decline to disregard these materials. The Government is, of course,\ncorrect that we do not ordinarily hear arguments made for the first time on\nappeal. See, e.g., Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018).\nThe ACLU’s reference to these statements does not constitute a new argument,\nhowever, but simply new evidence in support of old arguments, which “appeals\ncourts may entertain.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir.\n2006) Moreover, the Government’s subsequent public statements are precisely the\nsort of materials of which we may take judicial notice. See N.Y. Times I, 756 F.3d at\n110 n.8. We therefore consider these statements in evaluating the ACLU’s claims.\n 127 See 2005 Press Briefing, note 19, ante.\n 128 See Joint IG Report, note 23, ante, at 37.\n\n\n\n\n 38\n\fGeneral Gonzalez’s testimony before the Senate, in which he stated\nthat he “agreed with [OLC’s] legal analysis.”129\n\n These governmental disclosures illustrate, at most, the\nfollowing: that OLC analyzed a legal question, that the Attorney\nGeneral reviewed that analysis and agreed with it, and that the\nAttorney General then certified the program. None of the\ngovernmental disclosures indicate that the Attorney General (or any\nother official) ever distributed the OLC memorandum as binding\nprecedent, or that officials within NSA or another agency ever\nregarded OLC 10 as binding authority.130 Nor do any of these\ndisclosures represent an official decision or final opinion that explicitly\nreferences and relies on OLC 10; press briefings, congressional\ntestimony, white papers and inspectors general reports might be\ninformative, but they rarely, if ever, amount to official decisions or\n“final opinions.”\n\n\n 129 See 2006 Hearing, note 24, ante.\n 130 The section of the IG Report to which the ACLU points (entitled “A\nNew Legal Basis for the Program is Adopted”) does not constitute evidence that\nOLC 10 was “expressly adopted” for several reasons: first, while the ACLU\nsuggests that the “new legal basis” mentioned here refers to OLC 10, it seems that\nthis section of the IG Report in fact describes a period prior to the writing of OLC\n10. Moreover, it is not even clear that the “new legal basis” discussed here refers\nto a specific document at all. On the contrary, it seems more likely that the phrase\n“new legal basis” simply refers to a new interpretation of already‐extant\nconstitutional and statutory law. In other words, there is no reason to assume that\nthe IG Report used the word “adoption” as we employ it in this opinion; the IG\nReport may simply describe a shift in Administration lawyers’ best\nunderstanding of applicable law, not a promulgation of a new “policy.”\n\n\n\n\n 39\n\f It follows that OLC 10 was not created as working law, was\nnever adopted as working law, and was never incorporated by\nreference. We therefore hold that OLC 10 is protected by the\ndeliberative process and attorney‐client privileges, and was properly\nwithheld under Exemption 5.\n\n C. The Intelligence Program Documents\n\n We also affirm the District Court’s holding that the six\nintelligence program documents are exempt from disclosure under\nFOIA Exemptions 1 and 3.\n\n Exemption 1 permits agencies to withhold records that have\nbeen “specifically authorized under criteria established by an\nExecutive order to be kept secret in the interest of national defense or\nforeign policy and . . . are in fact properly classified pursuant to such\nExecutive order.”131 As relevant here, Executive Order 13,526 permits\nclassification of information if it pertains to “intelligence sources or\nmethods” or “foreign relations or foreign activities of the United\nStates,” where “unauthorized disclosure of the information reasonably\ncould be expected to result in damage to the national security.”132\n\n FOIA Exemption 3 applies to records “specifically exempted\nfrom disclosure by statute.”133 Here, the Government has invoked\n\n 131 5 U.S.C. § 552(b)(1)(A).\n 132 Exec. Order No. 13,526, 75 Fed. Reg. 707, 707 § 1.1(a)(3)‐(4), 709 § 1.4(c)‐\n(d) (Dec. 29, 2009).\n 133 5 U.S.C. § 552(b)(3).\n\n\n\n\n 40\n\fseveral statutes, including the National Security Act, which requires\nthat the Director of National Intelligence “protect intelligence sources\nand methods from unauthorized disclosure.”134 The ACLU does not\ndispute that each law qualifies as an exemption statute under\nExemption 3.135\n\n The Government bears the burden of establishing that these\nexemptions apply, but it can do so by submitting affidavits showing\nthat the statute’s application “appears logical or plausible.”136 Such\naffidavits must describe “with reasonably specific detail” how the\nwithheld information “logically falls within the claimed exemption,”\nand must not be “controverted by either contrary evidence in the\nrecord nor by evidence of agency bad faith.”137\n\n Here, the Government has met its burden. The requested\nintelligence program documents concern highly sensitive surveillance\nprograms.138 A senior intelligence official has attested that each\n\n 134 50 U.S.C. § 3024(i)(1). In addition, the Government invokes statutory\nprovisions related to the NSA, CIA, and communications intelligence activities\ngenerally. See 50 U.S.C. § 3605 (NSA); 50 U.S.C. § 3507 (CIA); 18 U.S.C. § 798\n(setting forth criminal penalties for disclosure of classified information).\n 135ACLU I, 2017 WL 1155910, at *16; see also CIA v. Sims, 471 U.S. 159, 168\n(1985) (holding that an earlier version of the relevant National Security Act\nprovision “qualifies as a withholding statute under Exemption 3”).\n 136Wilner v. Natʹl Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (internal\nquotation marks omitted).\n 137 Id. (internal quotation marks omitted).\n 138 See, e.g., J.A. 178‐82.\n\n\n\n\n 41\n\fdisputed document concerns “particular intelligence sources, and\nrelated methods used to collect and process foreign communications”;\nthat the existence of these sources and methods is ”currently and\nproperly classified”; and that disclosure of any meaningful part of\nthese documents “would reveal core NSA foreign intelligence\nactivities.”139\n\n In response to these declarations, the ACLU suggests that the\nGovernment failed to segregate and release non‐exempt legal\nanalysis.140 The ACLU points out that “the legal memoranda within\nthe packages are quite lengthy,”141 and that, in light of the “volume\nand breadth of public information” about the Stellar Wind program,\n“it strains credulity to claim that disclosure of pure legal analysis\nrelated to the program could damage national security today.”142\n\n Our credulity is not so easily strained. As we have previously\nobserved, “the very fact that legal analysis was given concerning a\nplanned operation would risk disclosure of the likelihood of that\n\n\n\n\n 139Id. at 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\nPolicy and Records, NSA). The Government’s classified declaration contains more\ndetail about these documents’ sensitivity. See id. at 447.\n\n FOIA “requires agencies and courts to differentiate among the contents\n 140\n\nof a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.”\nAbramson, 456 U.S. at 626.\n 141 Br. Appellants 42.\n 142 Id. at 39.\n\n\n\n\n 42\n\foperation.”143 Similarly, disclosure of even “[m]inor details of\nintelligence information may reveal more information than their\napparent insignificance suggests because, much like a piece of [a]\njigsaw puzzle, each detail may aid in piecing together other bits of\ninformation even when the individual piece is not of obvious\nimportance in itself.”144 We have long recognized that “in some\ncircumstances legal analysis could be so intertwined with facts entitled\nto protection that disclosure of the analysis would disclose such\nfacts.”145 Moreover, in this case, a senior national security official has\naffirmed that the legal analysis contained in these memoranda is\n“inextricably intertwined” with material that is both classified and\nprotected by statute.146\n\n In light of “the relative competencies of the executive and\njudiciary,” we generally adopt a “deferential posture in FOIA cases\nregarding the uniquely executive purview of national security.”147\n\n\n\n\n 143 N.Y. Times I, 756 F.3d at 119.\n 144 Wilner, 592 F.3d at 73 (internal quotation marks and brackets omitted).\n 145 N.Y. Times I, 756 F.3d at 119; see also N.Y. Times II, 806 F.3d at 687\n(holding that certain OLC documents are entitled to protection because “it would\nbe difficult to redact any arguably disclosable lines of legal analysis from these\ndocuments without disclosing the contents of [another protected] document”).\n 146J.A. 450 ¶ 4 (Supplemental Declaration of David J. Sherman, Associate\nDirector for Policy and Records, NSA).\n 147 Wilner, 592 F.3d at 76 (internal quotation marks omitted).\n\n\n\n\n 43\n\fAccordingly, we again decline to “second‐guess the predictive\njudgments made by the government’s intelligence agencies.”148\n\n We therefore hold that the surveillance approval packages were\nproperly withheld under Exemptions 1 and 3.\n\n D. The Request for “Reprocessing”\n\n Lastly, we briefly address the ACLU’s request that we “order the\nre‐processing” of the contested documents in light of several\ngovernmental disclosures that post‐date the agency’s initial FOIA\ndecision.149\n\n The ACLU identifies three such disclosures: (1) the full Joint IG\nReport (released in September 2015), (2) OLC 9 (released in February\n2016), and (3) OLC 8 (released while this appeal was pending).\nAlthough these disclosures are subsequent to the Government’s initial\nFOIA decision, the ACLU reminds us that it is “legally entitled to file\na new FOIA request at any time,” and so urges us to consider these\ndocuments now in the interests of judicial economy.150\n\n The Government responds that these disclosures cannot be the\nbasis for such an order because “[a]s a general rule, a FOIA decision is\nevaluated as of the time it was made and not at the time of a court’s\n\n\n\n 148 Id. (internal quotation marks omitted).\n 149 Br. Appellants 47.\n 150 Reply Br. Appellants 20.\n\n\n\n\n 44\n\freview.”151 Relying on precisely this rule, the District Court declined\nto order reprocessing.152\n\n Today, we reaffirm the general rule, and further hold that a\ncourt reviewing a FOIA decision must not order reprocessing simply\nto reassure itself that a correct decision remains current. As we have\npreviously observed, “[t]o require an agency to adjust or modify its\nFOIA response based on post‐response occurrences could create an\nendless cycle of judicially mandated reprocessing each time some\ncircumstance changes.”153 This case highlights the importance of our\ngeneral practice. Indeed, one of the disclosures the ACLU urges us to\nconsider—OLC 8—was released between the filing of the ACLUʹs\nappellate briefs. Imposing a continuing duty on agencies to update\ntheir responses to FOIA requests as “potentially relevant” documents\n(or, as is the case with the Joint IG Report, more sections of a certain\ndocument) are disclosed piecemeal renders agencies vulnerable to\nrepeated reprocessing requests mid‐litigation. FOIA does not subject\nagencies or the courts to such “an endlessly moving target.”154\n\n While we have occasionally departed from our general rule and\nconsidered subsequent developments as part of a FOIA review, we\nhave done so only in exceptional circumstances. And crucially, we\n\n 151 N.Y. Times I, 756 F.3d at 110 n.8.\n 152 ACLU I, 2017 WL 1155910, at *22.\n 153 Florez v. C.I.A., 829 F.3d 178, 188 (2d Cir. 2016) (quoting Bonner v. Dep’t\nof State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)) (internal quotation marks omitted).\n 154 Bonner, 928 F.2d at 1153 (internal quotation mark omitted).\n\n\n\n\n 45\n\fhave never ordered an agency to reprocess records simply to reassure\nourselves that a FOIA decision remains up‐to‐date. In Florez v. Central\nIntelligence Agency, for instance, we remanded to the District Court in\nlight of disclosures that post‐dated the Government’s decision to\nwithhold particular documents.155 Critically, however, we noted that\nthe agency had already voluntarily reprocessed the documents.156\nThus, our decision imposed no additional burden on the agency.\n\n Similarly, in New York Times I, although we considered post‐\ndecision disclosures in our review, we did so only because\nreprocessing was unnecessary to decide whether the withheld\ndocuments were subject to disclosure.157 In that case, the CIA had\nreplied to a FOIA request relating to a CIA targeted killing program\nwith a “Glomar response”158—neither confirming nor denying the\nexistence of a document.159 The CIA justified its Glomar response by\nstating that “the government has never disclosed . . . whether the CIA\nhas an operational role in the use of targeted lethal force or is\n\n\n 155 Florez, 829 F.3d at 187‐88.\n 156 Id. at 188.\n 157N.Y. Times I, 756 F.3d at 111 n.8 (“The Government’s post‐request\ndisclosures go to the heart of the contested issue, and, as discussed below, are\ninconsistent with some of its prior claims.” (internal quotation marks, citations,\nand brackets omitted)).\n\n The term derives from the Hughes Glomar Explorer, a vessel purportedly\n 158\n\nowned and operated by the CIA, which the Government refused to\nacknowledge. See Phillippi v. CIA, 546 F.2d 1009, 1010‐12 (D.C. Cir. 1976).\n 159 N.Y. Times I, 756 F.3d at 103, 105.\n\n\n\n\n 46\n\fauthorized to use such force.”160 This statement was directly\ncontradicted by the post‐request disclosures that discussed the CIA\nprogram explicitly.161 There was thus no question that, at the time of\nthe appeal, the Governmentʹs “Glomar response” was no longer\nsustainable.162\n\n The post‐request disclosures at issue in New York Times I were\ntherefore not just potentially relevant, but clearly dispositive of the\nGovernment’s secrecy claims. Under such circumstances, declining to\ntake judicial notice of public statements would serve no purpose.\nIgnoring such statements would have needlessly added work for the\ncourts and simply delayed the inevitable for the agencies.\n\n In sum, our Court has only departed from the general rule—that\nan agency’s FOIA decision is evaluated as of the time it was made—\nwhen doing so is in the clear interest of judicial economy and would\nnot burden the agency with prudential reprocessing. Those are not the\ncircumstances here. The Government has not already reprocessed the\nmaterial in light of the subsequent disclosures, and the subsequent\n\n\n\n\n 160 Id. at 122 (brackets omitted).\n 161Id. (“With CIA identified, the [Government’s] main argument for the\nuse of Glomar . . . responses evaporates.”).\n 162See Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a\nGlomar response when the existence or nonexistence of the particular records\ncovered by the Glomar response has been officially and publicly disclosed.”).\n\n\n\n\n 47\n\fdisclosures do not on their face plainly undermine the Government’s\nclaimed privilege.\n\n Accordingly, we decline to order reprocessing in light of the\nsubsequent disclosures of portions of the Joint IG Report, OLC 9, and\nOLC 8.\n\n III. CONCLUSION\n\n To summarize, we hold as follows:\n\n (1) A document reflects an agency’s “working law” when the\n agency regards that document as functionally binding\n authority. “Adoption” and “incorporation by reference” are\n means by which an otherwise privileged document becomes\n an agency’s “working law.”\n\n (2) “Express adoption” is a basis for disclosure of a previously\n privileged document where an agency’s statements indicate\n that it now acts (or refrains from acting) pursuant to the\n document’s functionally binding authority.\n\n (3) “Incorporation by reference” is a basis for disclosure of a\n previously privileged document where an agency’s formal\n opinion or ruling explicitly relies on that document and its\n reasoning in reaching a decision.\n\n (4) OLC 10 was properly withheld under FOIA Exemption 5\n (privileged communications).\n\n\n\n\n 48\n\f (5) The six intelligence program documents at issue were\n properly withheld under FOIA Exemptions 1 (classified\n information) and 3 (material shielded from disclosure by\n other statutes).\n\n (6) Because FOIA decisions must be evaluated as of the time of\n the agency decision, courts should not order reprocessing\n simply to reassure themselves that a FOIA decision remains\n current in light of subsequent disclosures. We therefore\n decline to order reprocessing.\n\n For the foregoing reasons, the August 22, 2017 judgment of the\nDistrict Court is AFFIRMED.\n\n\n\n\n 49\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY, Central Intelligence Agency, United States Department of Defense, United States Department of Justice, United States Department of State, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-05-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐3399‐cv\\nAm. Civil Liberties Union v. Nat’l Sec. Agency\\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n\\n\\n AUGUST TERM 2018\\n\\n No. 17‐3399‐cv\\n\\n AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION\\n FOUNDATION,\\n Plaintiffs‐Appellants,\\n\\n v.\\n\\n NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY,\\n UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES\\n DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE,\\n Defendants‐Appellees.\\n\\n\\n\\n On Appeal from the United States District Court\\n for the Southern District of New York\\n\\n\\n\\n ARGUED: DECEMBER 4, 2018\\n DECIDED: MAY 30, 2019\\n\\fBefore: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District\\nJudge.*\\n\\n\\n\\n\\n Plaintiffs‐Appellants, the American Civil Liberties Union and\\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\\nrequested documents concerning the legal authority for certain\\nnational security programs from Defendants‐Appellees, several\\nfederal agencies (jointly, “the Government”). After exhausting\\nadministrative remedies, the ACLU filed suit under the Freedom of\\nInformation Act (“FOIA”), requesting that the District Court compel\\ndisclosure. To defend the decision to withhold several documents, the\\nGovernment invoked specific statutory exemptions, including FOIA\\nExemption 5, which protects from disclosure attorney‐client and\\ndeliberative communications. The District Court (Kimba M. Wood,\\nJudge) granted summary judgment in the Government’s favor, holding\\nthat the agencies properly withheld the documents under FOIA. On\\nappeal, the ACLU argues that Exemption 5 does not apply because the\\nGovernment adopted or incorporated the disputed documents when\\nit “relied on” the legal advice contained therein. We conclude that\\nunder Exemption 5, an agency (1) “adopts” a previously privileged\\ndocument where the agency’s statements or behavior indicate that the\\nagency treats the document as binding authority, and (2)\\n“incorporates” a previously privileged document “by reference”\\n\\n\\n Judge Lorna G. Schofield, of the United States District Court for the\\n *\\n\\nSouthern District of New York, sitting by designation.\\n\\n\\n\\n\\n 2\\n\\fwhere a formal agency opinion or decision explicitly relies on that\\ndocument and its reasoning. We find no such adoption or\\nincorporation to have occurred in this case. Accordingly, we affirm the\\njudgment of the District Court.\\n\\n _______\\n\\n ASHLEY GORSKI (Patrick Toomey, American\\n Civil Liberties Union Foundation, New York,\\n NY; Hannah Bloch‐Wehba, David Schulz,\\n Sebastian Brady, Diana Lee, Paulina Perlin,\\n Media Freedom and Information Access\\n Clinic, Abrams Institute, Yale Law School,\\n New Haven, CT, on the brief), American Civil\\n Liberties Union Foundation, New York, NY,\\n for Plaintiffs‐Appellants.\\n\\n JEAN‐DAVID BARNEA (David S. Jones and\\n Benjamin H. Torrance, Assistant United\\n States Attorneys, on the brief), Assistant\\n United States Attorney, for Geoffrey S.\\n Berman, United States Attorney for the\\n Southern District of New York, New York,\\n NY, for Defendants‐Appellees.\\n\\n ________\\n\\n\\n\\n\\n 3\\n\\f JOSÉ A. CABRANES, Circuit Judge:\\n\\n The American people have the right to know the laws and\\npolicies that bind our government and its agencies. At the same time,\\ngovernment officials must be able to receive confidential legal advice\\nand deliberate frankly. Sometimes, these principles appear\\ncontradictory. We can, however, accommodate both by carefully\\ndefining the boundary between law, on the one hand, and advice, on\\nthe other. Put simply, law binds. Accordingly, when inquiring whether\\na document constitutes an agency’s “effective law and policy” or\\nwhether it merely contains legal or policy advice, courts should inquire\\nwhether officials regarded the document as binding. This inquiry\\nallows courts to distinguish between advice, which may be kept secret,\\nand a government’s effective law and policy, to which a strong\\npresumption of public access attaches.\\n\\n Plaintiffs‐Appellants, the American Civil Liberties Union and\\nthe American Civil Liberties Union Foundation (jointly, “the ACLU”),\\nrequested documents concerning the legal authority for certain\\nnational security programs from Defendants‐Appellees, several\\nfederal agencies (jointly, “the Government”). After exhausting\\nadministrative remedies, the ACLU filed suit under the Freedom of\\nInformation Act (“FOIA”), requesting that the District Court compel\\ndisclosure. To defend the withholdings, the Government invoked\\nspecific statutory exemptions, including FOIA Exemption 5, which\\nprotects from disclosure attorney‐client and deliberative\\ncommunications. The District Court (Kimba M. Wood, Judge) granted\\nsummary judgment in the Government’s favor, holding that the\\n\\n\\n\\n\\n 4\\n\\fagencies properly withheld the documents under FOIA. On appeal,\\nthe ACLU argues that Exemption 5 does not apply because the\\nGovernment adopted or incorporated the disputed documents when\\nit “relied on” the legal advice contained therein. We conclude that\\nunder Exemption 5, an agency (1) “adopts” a previously privileged\\ndocument where the agency’s statements or behavior indicate that the\\nagency treats the document as binding authority, and (2)\\n“incorporates” a previously privileged document “by reference”\\nwhere a formal agency opinion or decision explicitly relies on that\\ndocument and its reasoning. We find no such adoption or\\nincorporation to have occurred in this case. Accordingly, we affirm the\\njudgment of the District Court.\\n\\n I. BACKGROUND\\n\\n A. Executive Order 12,333 and the ACLU’s FOIA Request\\n\\n On December 4, 1981, President Reagan issued Executive Order\\n12,333 (“EO 12,333”), entitled “United States Intelligence Activities.”1\\nThe order sought to regulate the “effective conduct of United States\\nintelligence activities” and “protect[ ] . . . constitutional rights.”2\\nAmended numerous times over the last four decades, EO 12,333 has\\nlong served as a “principal Executive Branch authority for foreign\\nintelligence activities.”3 Today, it remains “one of the primary\\n\\n 1 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981).\\n 2 Id.\\n 3President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty\\nand Security in a Changing World: Report and Recommendations of the Presidentʹs\\n\\n\\n\\n\\n 5\\n\\fauthorities that allow agencies of the intelligence community . . . to\\ngather foreign intelligence.”4\\n\\n In the wake of the terrorist attacks of September 11, 2001 and the\\nsubsequent expansion of intelligence operations, EO 12,333 became\\nthe subject of renewed public attention. On May 13, 2013, the ACLU\\nsubmitted requests to several federal agencies “seeking the release of\\nrecords that describe the government’s understanding of its\\nsurveillance authority under [EO] 12,333” and “the rules that regulate\\nthe government’s acquisition, retention, use, and dissemination of the\\ncommunications of Americans swept up in that surveillance.”5 In\\nrequesting the documents, the ACLU invoked FOIA, a federal statute\\nenacted in 1966 that facilitates the public release of most government\\nrecords.6\\n\\n The agencies resisted disclosing the requested records. On\\nDecember 30, 2013, after exhausting administrative remedies, the\\n\\nReview Grp. on Intelligence and Commcʹns Techs 69 (Dec. 12, 2013),\\nhttps://obamawhitehouse.archives.gov/sites/default/files/docs/2013‐12‐\\n12_rg_final_report.pdf.\\n\\n Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 09198\\n 4\\n\\n(KMW)(JCF), 2017 WL 1155910, at *1 (S.D.N.Y. Mar. 27, 2017) (“ACLU I”).\\n 5 Joint Appendix (“J.A.”) 24. The ACLU submitted the requests to the\\nCentral Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau\\nof Investigation, the National Security Agency, the United States Department of\\nState, the National Security Division, and the Office of Legal Counsel. See ACLU I,\\n2017 WL 1155910, at *2.\\n 6See 5 U.S.C. § 552; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132,\\n136 (1975).\\n\\n\\n\\n\\n 6\\n\\fACLU filed suit under FOIA’s cause‐of‐action provision, seeking to\\ncompel the release of the documents.7\\n\\n During the litigation, the Government voluntarily produced\\nhundreds of pages of responsive material. Nevertheless, the\\nGovernment continued to withhold certain documents, claiming they\\nwere exempt from disclosure under specific statutory exemptions.\\n\\n In early 2016, the parties cross‐moved for summary judgment\\nregarding the lawfulness of the Government’s decision to withhold the\\ndocuments. On March 27, 2017, the District Court denied the ACLU’s\\nmotion in full, and granted the Government’s motion in part,\\napproving the Government’s decision to withhold most documents,\\nbut requiring more detailed justifications for several remaining\\ndocuments. The District Court then reviewed supplementary briefing\\nfrom both sides on renewed cross‐motions for summary judgment\\nwith respect to the remaining documents. On August 17, 2017, the\\nDistrict Court granted the Government’s renewed motion for\\n\\n\\n\\n\\n 7 Under FOIA, requesting parties may petition a district court “to enjoin\\nthe agency from withholding agency records and to order the production of any\\nagency records improperly withheld from the complainant.” 5 U.S.C.\\n§ 552(a)(4)(B). District courts must review an agency’s decision to withhold\\nrecords de novo to ensure that the decision complies with FOIA’s substantive\\nrequirements. Id. The agency, meanwhile, bears the burden of “sustain[ing] its\\naction”—i.e., the decision to withhold. Id.\\n\\n\\n\\n\\n 7\\n\\fsummary judgment and denied the ACLU’s cross‐motion.8 Judgment\\nwas entered on August 22, 2017.\\n\\n B. The Contested Documents\\n\\n On appeal, the ACLU contests the District Court’s rulings with\\nrespect to seven documents. 9\\n\\n OLC 10. The first document, “OLC 10,” is a 108‐page\\nmemorandum, dated May 6, 2004, from the Assistant Attorney\\nGeneral for the Office of Legal Counsel (“OLC”), Jack L. Goldsmith,\\nIII, to Attorney General Alberto Gonzales. The general functions of the\\nOLC include “assisting the Attorney General in the performance of his\\nfunctions as legal adviser to the President” in part by “advising as to\\nthe [ ] form and legality” of Executive orders and actions.10 The OLC\\nmemorandum, titled “Re: Review of the Legality of the STELLAR\\nWIND Program,” examines a “highly classified and strictly\\n\\n 8 See Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\\n(JCF), 2017 WL 6387731, at *1 (S.D.N.Y. Aug. 17, 2017) (“ACLU II”).\\n 9 Initially, the ACLU also challenged the decision to withhold an eighth\\ndocument, “OLC 8.” While this appeal was pending, however, the Government\\nreprocessed and released most of that document. Accordingly, the ACLU is “no\\nlonger seeking disclosure of that memorandum.” Reply Br. Appellants 3 n.1.\\n 10 28 C.F.R. § 0.25; see also Citizens for Responsibility & Ethics in Washington\\nv. U.S. Dep’t of Justice, 846 F.3d 1235, 1238 (D.C. Cir. 2017) (discussing the role of\\nOLC generally); Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting)\\n(explaining that the role of Assistant Attorney General for OLC is “a post that has\\ntraditionally had responsibility for providing legal advice to the President (subject\\nto approval of the Attorney General)”). Justice Scalia, like Chief Justice Rehnquist\\nbefore him, served in this role.\\n\\n\\n\\n\\n 8\\n\\fcompartmented program of electronic surveillance” authorized by\\nPresident George W. Bush in response to the attacks of September 11,\\n2001.11 The memorandum reviews the program’s history and analyzes\\nits legality under EO 12,333, applicable statutes, and the United States\\nConstitution.12\\n\\n The District Court concluded that OLC 10 is exempt from\\ndisclosure under FOIA Exemption 5 because the document is both an\\nattorney‐client communication and a deliberative, pre‐decisional\\ngovernment memorandum.\\n\\n Intelligence Program Documents. The remaining six documents13\\neach contains legal advice from Department of Justice attorneys\\nconcerning “[National Security Agency (“NSA”)] programs or other\\nintelligence activities.”14\\n\\n According to a sworn declaration from a senior NSA official,\\nfive of these six documents (NSD 12, 13, 14, and 33, and NSA 11)\\nconcern “particular intelligence sources, and related methods used to\\n\\n\\n\\n\\n 11 J.A. 276‐77.\\n 12 See id. at 276‐351.\\n 13 The documents are identified individually as NSA 11 and NSD 12, 13,\\n14, 33, and 49. Collectively, we refer to them as “the intelligence program\\ndocuments.”\\n 14 ACLU I, 2017 WL 1155910, at *14 (NSA 11); id. at *12 (NSD 12, 13, 14, 33,\\nand 49).\\n\\n\\n\\n\\n 9\\n\\fcollect and process foreign communications.”15 The disclosure of these\\ndocuments “would [therefore] demonstrate the capabilities and\\nlimitations” of the United States’ signals intelligence systems.16\\nSimilarly, disclosure of the sixth document (NSD 49) would “tend[ ] to\\nidentify the targets of intelligence‐gathering efforts, reveal the specific\\ncollection techniques and methods employed, and contain details\\nconcerning the locations and timing of that collection.”17\\n\\n The District Court held that FOIA exempts these six intelligence\\nprogram documents from disclosure because they contain classified\\nand sensitive national security information.18\\n\\n C. The Government’s Public Statements\\n\\n It is undisputed that the contested documents have never been\\nreleased in unredacted form. The Government has, however,\\ndiscussed similar subject matter in several public statements. A central\\nissue on appeal is whether these public statements—delivered over a\\nperiod of 13 years—undermine the Government’s claims of attorney‐\\nclient and deliberative process privilege with respect to OLC 10.\\n\\n\\n\\n 15J.A. 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\\nPolicy and Records).\\n 16 Id. at 154 ¶ 39.\\n 17Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)\\n(JCF), Dkt. No. 60 at 15 ¶ 16 (Declaration of Antoinette B. Shiner, Information\\nReview Officer for the Litigation Information Review Office, CIA).\\n 18 ACLU II, 2017 WL 6387731, at *6.\\n\\n\\n\\n\\n 10\\n\\f First, in a December 19, 2005 White House press briefing,\\nAttorney General Gonzales discussed the “legal underpinnings” of the\\nStellar Wind program.19 In that briefing, Gonzales explained that the\\nprogram was authorized by Congress’s 2001 Authorization for the Use\\nof Military Force (“AUMF”), and was in any event a legal exercise of\\nthe President’s inherent constitutional authority as Commander‐in‐\\nChief. Gonzales did not mention OLC opinions in his prepared\\nremarks, and when asked about the possibility of releasing an OLC\\nopinion, responded, “Iʹm not confirming the existence of opinions or\\nthe non‐existence of opinions. I’ve offered up today our legal analysis\\nof the authorities of this President.”20\\n\\n Second, on January 19, 2006, the Department of Justice\\ntransmitted to Congress a “White Paper” entitled “Legal Authorities\\nSupporting the Activities of the National Security Agency Described\\nby the President.”21 According to an accompanying letter, the\\ndocument was “prepared by the Department of Justice to provide a\\ndetailed analysis of the legal basis” for certain NSA activities initiated\\n\\n\\n 19 Office of the Press Sec’y, Press Briefing by Attorney General Alberto\\nGonzales and General Michael Hayden, Principal Deputy Director for National\\nIntelligence, WHITE HOUSE, (Dec. 19, 2005), https://georgewbush‐\\nwhitehouse.archives.gov/news/releases/2005/12/20051219‐1.html (“2005 Press\\nBriefing”).\\n 20 Id.\\n 21 Legal Authorities Supporting the Activities of the National Security Agency\\nDescribed by the President, DEP’T OF JUST. (Jan. 19, 2006),\\nhttps://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op\\n‐olc‐v030‐p0001.pdf (“White Paper”).\\n\\n\\n\\n\\n 11\\n\\fin the aftermath of the September 11, 2001 attacks.22 The White Paper\\nbriefly describes NSA surveillance activities and discusses their\\nlegality in light of the ongoing threat from Al‐Qaeda and pursuant to\\nstatutory authorities and the United States Constitution. The paper\\ncontains “[m]uch of the legal reasoning” first articulated in OLC 10.23\\n\\n Third, on February 6, 2006, Attorney General Gonzales stated,\\nduring a hearing before the Senate Judiciary Committee, that he\\n“agreed with the [Office of Legal Counsel’s] legal analysis” concerning\\nthe Stellar Wind program.24\\n\\n Fourth, on July 10, 2009, the Inspectors General of five agencies\\ncompleted and submitted a classified 747‐page comprehensive report\\nconcerning the Stellar Wind program (“the Joint IG Report”) to several\\ncommittees of Congress.25 At the same time, the Inspectors General\\n\\n\\n\\n 22 Id. at 1.\\n 23 Offices of Inspectors General, Report on the President’s Surveillance\\nProgram, Vol. 1 at 49 (July 10, 2009), https://oig.justice.gov/reports/2015/PSP‐09‐18‐\\n15‐full.pdf (“Joint IG Report”).\\n 24 Wartime Executive Power and the National Security Agency’s Surveillance\\nAuthority: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 55 (2006),\\navailable at 2006 WL 270364 (“2006 Hearing”).\\n 25 The report was prepared by the Inspectors General of the Department of\\nJustice, Department of Defense, Office of the Director of National Intelligence,\\nCIA, and NSA. It was delivered to the Senate Select Committee on Intelligence,\\nthe Senate Committee on the Judiciary, the House Permanent Select Committee\\non Intelligence, and the House Committee on the Judiciary. See Joint IG Report\\nnote 23, ante, at iii.\\n\\n\\n\\n\\n 12\\n\\falso publicly released a shorter, unclassified version of the report;26 the\\nGovernment did not declassify and release a redacted version of the\\nfull report until April 2015.27 The full report discusses the drafting of\\nOLC 10 under the heading “A New Legal Basis for the Program Is\\nAdopted.”28\\n\\n Fifth, in February 2016, the Government made public a\\npreviously classified letter (“OLC 9”) from Deputy Assistant Attorney\\nGeneral John C. Yoo to Judge Colleen Kollar‐Kotelly, then Presiding\\nJudge of the Foreign Intelligence Surveillance Court. 29 The letter,\\ndated May 17, 2002, “discusses the President’s power to deploy\\nexpanded electronic surveillance techniques” and “outlines the legal\\njustifications for such surveillance.”30\\n\\n Finally, while this appeal was pending, the Government\\nreprocessed and released a less‐redacted version of an additional\\n\\n 26 See Offices of Inspectors General, Unclassified Report on the President’s\\nSurveillance Program (July 10, 2009), available at\\nhttps://oig.justice.gov/special/s0907.pdf.\\n 27IC on the Record Database: Results, OFF. OF THE DIRECTOR OF NAT’L\\nINTELLIGENCE, https://www.intelligence.gov/ic‐on‐the‐record‐database/advanced‐\\nsearch?keyword=&date=9&sdate=03%2F31%2F2015&edate=05%2F01%2F2015&t\\nopic=&catid=#results (indicating April 25, 2015 as the date of publication); see also\\nCharlie Savage, Government Releases Once‐Secret Report on Post‐9/11 Surveillance, N.\\nY. TIMES (April 24, 2015) available at\\nhttps://www.nytimes.com/interactive/2015/04/25/us/25stellarwind‐ig‐report.html.\\n 28 See Joint IG Report, note 23, ante, at 37‐39.\\n 29 J.A. 253‐54, 257.\\n 30 See id. at 393.\\n\\n\\n\\n\\n 13\\n\\fdocument, “OLC 8.” This document, a November 2, 2001\\nmemorandum written by Deputy Assistant Attorney General Yoo,\\nexplains, inter alia, “legal issues pertaining to surveillance under E.O\\n12333.”31\\n\\n II. DISCUSSION\\n\\n We review a district court’s grant of summary judgment in\\nFOIA litigation de novo.32\\n\\n In conducting our review, we first clarify the scope of FOIA and\\nits exemptions, as well as the concepts of “working law,” “adoption”\\nand “incorporation.” Applying these principles, we affirm the\\nconclusion of the District Court that OLC 10 is exempt from disclosure\\nunder FOIA Exemption 5. We similarly affirm its conclusion that the\\nsix intelligence program documents are exempt from disclosure under\\nFOIA Exemptions 1 and 3. Finally, we reject the ACLU’s request that\\nwe “order the re‐processing of the documents,” that is, compel the\\nagencies to once again review the contested documents to ensure that\\nonly privileged and undisclosed, classified information is redacted.33\\n\\n\\n\\n\\n 31 Id. at 259.\\n 32See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 112 (2d\\nCir. 2014) (“N.Y. Times I”); see also Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999)\\n(declining to “depart from a pure de novo standard”).\\n 33 Br. Appellants 47.\\n\\n\\n\\n\\n 14\\n\\f A. FOIA and its Exemptions\\n\\n Passed in 1966, FOIA was intended to “permit access to official\\ninformation long shielded unnecessarily from public view.”34 FOIA\\nthus establishes a default rule in favor of Government disclosure,\\nproviding that an “agency, upon any request for records which\\n(i) reasonably describes such records and (ii) is made in accordance\\nwith published rules . . . shall make the records promptly available to\\nany person.”35 As the Supreme Court has explained, “virtually every\\ndocument generated by an agency is available to the public in one form\\nor another, unless it falls within one of the [FOIA]’s nine\\nexemptions.”36 In accordance with FOIAʹs purposes, the statutory\\nexemptions are “narrowly construed.”37\\n\\n Our case concerns three of these exemptions: Exemption 1\\nexempts records that have been properly classified “in the interest of\\nnational defense or foreign policy.”38 Exemption 3 exempts records\\nthat a statute other than FOIA prohibits from disclosure.39 Finally,\\n\\n\\n\\n\\n 34 Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).\\n 35 5 U.S.C. § 552(a)(3)(A).\\n 36 Sears, 421 U.S. at 136.\\n 37F.B.I. v. Abramson, 456 U.S. 615, 630 (1982); see also Natʹl Council of La Raza\\nv. Depʹt of Justice, 411 F.3d 350, 356 (2d Cir. 2005).\\n 38 5 U.S.C. § 552(b)(1)(A).\\n 39 Id. § 552(b)(3).\\n\\n\\n\\n\\n 15\\n\\fExemption 5 exempts records that would be privileged in litigation.40\\nThe District Court upheld the redaction of OLC 10 under Exemption\\n5, and the decision to withhold the intelligence program documents\\nunder Exemptions 1 and 3. We review each holding in turn.\\n\\n B. OLC 10 and FOIA Exemption 5\\n\\n Exemption 5 exempts from FOIA’s disclosure requirements\\n“inter‐agency or intra‐agency memorandums [sic] or letters that\\nwould not be available by law to a party other than an agency in\\nlitigation with the agency.”41 This exemption “incorporate[s] into the\\nFOIA all the normal civil discovery privileges,”42 including\\n“traditional common law privileges against disclosure” such as “the\\nattorney‐client and deliberative process privileges.”43 Here, the\\nDistrict Court upheld the redaction of OLC 10 pursuant to both\\nprivileges.44 We agree.\\n\\n 1. The Attorney‐Client Privilege\\n\\n As we have explained in prior decisions, “[t]he attorney‐client\\nprivilege protects confidential communications between client and\\ncounsel made for the purpose of obtaining or providing legal\\n\\n\\n 40 Id. § 552(b)(5).\\n 41 Id.\\n 42 Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991).\\n 43 N.Y. Times I, 756 F.3d at 104.\\n 44 ACLU I, 2017 WL 1155910, at *10.\\n\\n\\n\\n\\n 16\\n\\fassistance.”45 The privilege functions to “encourage attorneys and\\ntheir clients to communicate fully and frankly and thereby to promote\\nbroader public interests in the observance of law and administration\\nof justice.”46\\n\\n In the context of legal advice to government officials, “the\\nprivilege furthers a culture in which consultation with government\\nlawyers is accepted as a normal, desirable, and even indispensable\\npart of conducting public business. Abrogating the privilege\\nundermines that culture and thereby impairs the public interest.”47\\nThe public interest in ensuring that government officials receive sound\\nlegal advice is at its apex when the programs about which advice is\\nsought are secret and unlikely to be subject to litigation. In such cases,\\nthe frank exchange between government officials and their attorneys\\nserves as a crucial—and maybe the only—safeguard in ensuring the\\nlegality of government action.\\n\\n The scope of the privilege follows directly from these purposes.\\nThe privilege protects “communications (1) between a client and his\\nor her attorney (2) that are intended to be, and in fact were, kept\\n\\n\\n\\n\\n 45 In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007).\\n 46 Id. (internal quotation marks omitted); see also Upjohn Co. v. United\\nStates, 449 U.S. 383, 389 (1981) (explaining that one purpose of the privilege is “to\\nencourage clients to make full disclosure to their attorneys” (internal quotation\\nmarks omitted)).\\n 47 In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).\\n\\n\\n\\n\\n 17\\n\\fconfidential (3) for the purpose of obtaining or providing legal\\nadvice.”48\\n\\n OLC 10 meets these requirements easily. First, as reflected in the\\nindex the Government provided to the ACLU, OLC 10 was prepared\\nby an OLC attorney (Assistant Attorney General Goldsmith) for an\\nExecutive Branch client (the Attorney General, and eventually, the\\nPresident).49 The document is thus a communication between an\\nattorney and a client.\\n\\n Second, the memorandum was written with the understanding\\nthat “OLC legal advice is generally kept confidential,”50 it was\\n“communicated in confidence,”51 and “none of [its redacted portions]\\nhave been previously publicly disclosed.”52 The redacted sections of\\nOLC 10 were thus intended to be, and actually were, kept confidential.\\n\\n And third, by its own description, OLC 10 is one in a series of\\nmemoranda which “advised” the Attorney General that certain\\npresidential actions “would satisfy relevant constitutional\\nstandards.”53 Moreover, as we have previously explained, OLC\\n\\n 48 United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Brennan\\nCtr. for Justice v. U.S. Depʹt of Justice, 697 F.3d 184, 207 (2d Cir. 2012).\\n 49 J.A. 259, 276‐77; see also note 10, ante (citing Morrison, 487 U.S. at 700).\\n 50 Id. at 244 ¶ 3 (Declaration of Paul P. Colborn, Special Counsel, OLC).\\n 51 Id. at 250 ¶ 19.\\n 52 Id. at 256 ¶ 34.\\n 53 Id. at 284.\\n\\n\\n\\n\\n 18\\n\\fmemoranda “provide, in their specific contexts, legal advice as to what\\na department or agency is permitted to do.”54 The communication thus\\nprovided legal assistance.55\\n\\n The ACLU does not seriously challenge this analysis. Instead, it\\nargues that while OLC 10 was initially protected by the attorney‐client\\nprivilege, the Government subsequently waived the privilege through\\n“official acknowledgments” and “public reliance.”56\\n\\n The ACLU’s assertion of a doctrine of waiver by “official\\nacknowledgment” reflects a basic misunderstanding of the attorney‐\\nclient privilege. This privilege protects confidential communications\\nbetween an attorney and a client. The “official acknowledgment”\\ndoctrine, however, precludes the Government from withholding\\n\\n\\n\\n\\n 54New York Times Co. v. U.S. Depʹt of Justice, 806 F.3d 682, 687 (2d Cir. 2015)\\n(“N.Y. Times II”) (internal quotation marks and emphasis omitted).\\n 55 That the Attorney General might have transmitted OLC 10 to the White\\nHouse does not change our analysis. As the OLC declarant explained, “[t]he\\nprincipal function of OLC is to assist the Attorney General in her role as legal\\nadviser to the President of the United States and to departments and agencies of\\nthe Executive Branch.” J.A. 244 ¶ 2; see also 28 C.F.R. § 0.25 (OLC advises as to the\\n“form and legality” of proposed Executive orders, proclamations and regulations\\n“prior to their transmission to the President.”). Accordingly, if OLC 10 was\\ntransmitted to the White House, then this transmission is also a communication\\nbetween an attorney (the Attorney General) and a client (the White House);\\nintended to be and kept confidential; and offered for the purpose of advising the\\nPresident of the law governing a proposed action. Id. at 277, 284.\\n 56 Br. Appellants 34‐35.\\n\\n\\n\\n\\n 19\\n\\finformation on the basis that it is classified after the Government has\\ndisclosed substantially the same information.57\\n\\n But such informational disclosures have no effect on whether a\\ncommunication is protected by the attorney‐client privilege.58 The\\nattorney‐client privilege “protects communications rather than\\ninformation.”59 We have therefore explained that the attorney‐client\\nprivilege is not “lost by the mere fact that the information\\ncommunicated [between attorney and client] is otherwise available to\\nthe public.”60 The concept of “official acknowledgment” is thus\\nirrelevant to the Exemption 5 inquiry and cannot provide an\\nindependent basis for overcoming Exemption 5.61\\n\\n\\n\\n See N.Y. Times I, 756 F.3d at 119‐20. The principle underlying the “official\\n 57\\n\\nacknowledgment” doctrine is intuitive: once information is no longer secret, it\\ncannot be protected simply “because it is secret.”\\n 58Upjohn, 449 U.S. at 395 (explaining that the attorney‐client privilege\\n“protects disclosure of communications; it does not protect disclosure of the\\nunderlying facts”).\\n\\n In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032,\\n 59\\n\\n1037 (2d Cir. 1984).\\n 60 United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982); see\\nalso In re Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158,\\n1165 (2d Cir. 1992) (discussing generally the difference between information‐\\nbased and communication‐based privileges).\\n\\n This concept is instead suitable for the Exemptions 1 and 3 inquiries,\\n 61\\n\\nwhere the Government seeks to withhold documents on the ground that they\\ncontain classified information. See, e.g., N. Y. Times I, 756 F.3d at 113, 120 (outlining\\nthe “three‐part test for ‘official disclosure,’ relevant to Exemption 1”).\\n\\n\\n\\n\\n 20\\n\\f By contrast, there is precedent for the ACLU’s argument that the\\nGovernment’s “public reliance” on a document erodes its otherwise\\nprivileged status. While we have not used the precise phrase “public\\nreliance,” we have indeed held that “the attorney‐client privilege may\\nnot be invoked to protect a document adopted as, or incorporated by\\nreference into, an agency’s policy.”62\\n\\n This rule—that an incorporated or adopted document is no\\nlonger protected by privilege—mirrors the general “fairness doctrine”\\nthat governs the implicit waiver of privilege during litigation.63 As we\\nhave previously explained, “courts have found waiver by implication\\nwhen a client testifies concerning portions of the attorney‐client\\ncommunication . . . and when a client asserts reliance on an attorneyʹs\\nadvice as an element of a claim or defense.”64 And so we have\\nconsistently rejected parties’ attempts to withhold attorney‐client\\ncommunications from a litigation adversary while relying on the same\\nmaterial to advance a claim in court.65 To put it simply, in court, a party\\n\\n\\n\\n 62 La Raza, 411 F.3d at 360.\\n 63 See In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); see also Brennan Ctr.,\\n697 F.3d at 208 (“A party’s reliance on an otherwise privileged communication to\\nassert a claim or defense is similar to the type of express adoption or\\nincorporation by reference that vitiates Exemption 5 protection”).\\n 64Cnty. of Erie, 546 F.3d at 228 (quoting Sedco Int’l S.A. v. Cory, 683 F.2d\\n1201, 1206 (8th Cir.1982)) (internal brackets and ellipses omitted).\\n 65John Doe Co. v. United States, 350 F.3d 299, 303 (2d Cir. 2003); see also\\nGeorge A. Davidson & William H. Voth, Waiver of the Attorney‐Client Privilege, 64\\nOR. L. REV. 637, 646‐53 (1986).\\n\\n\\n\\n\\n 21\\n\\fmay not wield a privileged communication as both a “shield and a\\nsword.”66\\n\\n A similar principle applies when the Government “adopts” or\\n“incorporates” a previously privileged document as its effective law\\nand policy.67 Just as a litigating party may not offer a privileged\\ncommunication to invoke the law while maintaining the privilege, so\\ntoo the Government may not expressly adopt a privileged\\ncommunication as its effective law or policy while maintaining the\\nprivilege. As we explain below, however, in this case the Government\\nhas neither expressly “adopted” OLC 10, nor “incorporated [it] by\\nreference.”68\\n\\n 2. The Deliberative Process Privilege\\n\\n In addition to the attorney‐client privilege, OLC 10 also meets\\nthe requirements of the “deliberative process privilege.”\\n\\n Like the attorney‐client privilege, the deliberative process\\nprivilege ensures “frank discussion” and protects agencies from being\\n“forced to operate in a fishbowl.”69 But whereas the attorney‐client\\nprivilege promotes legal compliance in particular, the deliberative\\n\\n 66 In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).\\n\\n See Brennan Ctr., 697 F.3d at 195 (holding that Exemption 5 does not\\n 67\\n\\napply “when the contents have been adopted, formally or informally, as the\\nagency position on an issue”).\\n 68 See Section II.3.b at 37‐40, post.\\n 69 Mink, 410 U.S. at 87 (internal quotation marks omitted).\\n\\n\\n\\n\\n 22\\n\\fprocess privilege promotes reasoned policy‐making in general. As the\\nSupreme Court has explained, “the frank discussion of legal or policy\\nmatters in writing might be inhibited if the discussion were made\\npublic,” and “the decisions and policies formulated would be the\\npoorer as a result.”70 Accordingly, a document may be withheld\\npursuant to this privilege if it is: “(1) predecisional, i.e., prepared in\\norder to assist an agency decisionmaker in arriving at his decision, and\\n(2) deliberative, i.e., actually . . . related to the process by which policies\\nare formulated.”71\\n\\n We think it clear that OLC 10 meets these criteria as well. As we\\nhave previously recognized, “OLC does not purport, and in fact lacks\\nauthority, to make policy decisions. OLC’s legal advice and analysis\\ninforms the decisionmaking of Executive Branch officials on matters\\nof policy, but OLC’s legal advice is not itself dispositive as to any\\npolicy adopted.”72 Moreover, the unredacted portions of OLC 10 make\\nclear that OLC’s role in the Stellar Wind authorization process was\\nexclusively predecisional and deliberative. The document responds to\\n\\n\\n 70 Sears, 421 U.S. at 150‐51 (internal quotation marks omitted). Although\\nSears discusses an “executive privilege” rather than a “deliberative process\\nprivilege,” we have held that “[t]he deliberative process privilege . . . is\\nencompassed within the executive privilege.” Grand Cent. Pʹship, Inc. v. Cuomo,\\n166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks omitted).\\n 71 La Raza, 411 F.3d at 356 (internal quotation marks omitted).\\n 72 Brennan Ctr., 697 F.3d at 203 (citing an OLC declaration); see also N.Y.\\nTimes II, 806 F.3d at 687 (“OLC documents are not working law. At most, they\\nprovide, in their specific contexts, legal advice as to what a department or agency\\nis permitted to do.” (internal quotation marks omitted)).\\n\\n\\n\\n\\n 23\\n\\fthe Attorney General’s request that OLC undertake a “thorough\\nreexamination” of the legality of presidential directives concerning\\nStellar Wind.73 As OLC 10 explains, the Attorney General would\\nconsult OLC advice (such as OLC 10) in choosing whether to approve\\nthe program “as to form and legality.”74 OLC 10 thus preceded and\\ndirectly related to the Attorney General’s approval decision.75\\n\\n 3. The Limits of Exemption 5\\n\\n As we have previously explained, “[j]ust because a document\\nsatisfies [the above] requirements, however, does not mean that the\\ndeliberative process [or attorney‐client] privilege bars its disclosure.”76\\nThe ACLU therefore relies on three doctrines (which it calls\\n“exceptions”) to argue that the Government must release additional\\nportions of OLC 10.77 The ACLU claims (1) that OLC 10 contains\\n“working law,”78 (2) that OLC 10 was “adopted,” or (3) that OLC 10\\n\\n 73 J.A. 277.\\n 74 Id. at 284.\\n 75Indeed, the Attorney General’s approval of the Stellar Wind program “as\\nto form and legality” was itself merely a predecisional and deliberative step\\nbefore the actual policy decision was made by the President—i.e., the decision to\\nreauthorize Stellar Wind. Id.\\n\\n 76 La Raza, 411 F.3d at 356.\\n 77 Properly understood, these doctrines are not “exceptions” to Exemption\\n5 at all. Rather, they are tell‐tale indicators that, notwithstanding its appearance, a\\ndocument simply is not protected by the deliberative process and attorney‐client\\nprivileges.\\n 78 Br. Appellants 18‐23.\\n\\n\\n\\n\\n 24\\n\\fwas “incorporated by reference” as agency policy.79 Although each of\\nthese terms emerges from our caselaw, ACLU’s arguments reveal that\\nour prior decisions have not yet adequately defined these concepts and\\nthe relationship between them. We therefore accept the parties’\\ninvitation to clarify the contours of Exemption 5 and the doctrines that\\ndefine its limits.\\n\\n a. Effective Law and Policy\\n\\n The Supreme Court first provided clear guidance regarding the\\nlimits of FOIA Exemption 5 in 1975 in N.L.R.B v. Sears, Roebuck & Co.80\\nDrawing a clear distinction between deliberative material and\\ndocuments that embody law and policy, the Supreme Court explained:\\n\\n Exemption 5, properly construed, calls for disclosure of\\n all opinions and interpretations which embody the\\n agency’s effective law and policy, and the withholding of\\n all papers which reflect the agency’s group thinking in the\\n process of working out its policy and determining what\\n its law shall be.81\\n\\n The logic of this dichotomy is straightforward. The deliberative\\nprocess privilege protects “communications received by the\\ndecisionmaker on the subject of the decision prior to the time the\\n\\n\\n 79 Id. at 23‐25.\\n 80 421 U.S. 132 (1975).\\n 81 Id. at 153 (internal quotation marks omitted).\\n\\n\\n\\n\\n 25\\n\\fdecision is made” to ensure that the subsequent decision will be fully\\ninformed.82 By contrast, there is little need to preserve the\\nconfidentiality of discussions that take place after a decision has been\\nmade and rendered as the agency’s “effective law and policy.”83\\n\\n Although the conceptual distinction between pre‐decisional\\nadvice and post‐decisional explanation is clear, these materials might\\nlook quite similar in practice. For instance, a letter advising an agency’s\\nleader on how to interpret a statute could look identical to a letter\\ninforming an agency subordinate about how the agency interprets a\\nstatute.\\n\\n In light of the potential for conflation, the doctrines of “working\\nlaw,” “express adoption,” and “incorporation by reference” assist\\ncourts in applying this conceptual distinction.84 As we now explain,\\n“working law” describes a category of post‐decisional material, and\\n“express adoption” and “incorporation by reference” describe two\\nmethods by which pre‐decisional material can become post‐decisional.\\n\\n\\n\\n\\n 82 Id. at 151‐53.\\n 83 See id.\\n 84 See Brennan Ctr., 697 F.3d at 201 (“The question of whether a document\\nconstitutes working law, or has been expressly adopted or incorporated by\\nreference, then, are two paths to determining whether a withheld document\\nconstitutes what FOIA affirmatively requires to be disclosed.” (internal quotation\\nmarks omitted)).\\n\\n\\n\\n\\n 26\\n\\f i. Working Law\\n\\n As might be expected from the phrase itself, a document\\nembodies an agency’s “working law” when the document binds\\nagency officials or members of the public. In other words, working law\\nannounces what an agency’s law is, not what the law might be. Because\\nsuch a document has operative effect—i.e., binding rather than\\npersuasive power—it is inherently post‐decisional.\\n\\n In reaching this conclusion, we find instructive certain cases of\\nthe Court of Appeals for the District of Columbia Circuit (the “D.C.\\nCircuit”), to which we have referred as “a specialist” in differentiating\\nprivileged material from working law.85 The D.C. Circuit has\\nrepeatedly employed a functional test to determine whether a\\ndocument constitutes “working law,” inquiring whether the agency\\ntreats the document as binding.\\n\\n For instance, in Coastal States Gas Corp. v. Department of Energy,\\nthe case from which the working law doctrine emerged, the D.C.\\nCircuit held that when an agency circulated and consulted certain\\ndocuments as a source of binding authority, these documents were a\\npost‐decisional “functioning body of secret law.”86 In that case, the\\nplaintiffs sought disclosure of agency “memoranda from regional\\ncounsel to auditors . . . issued in response to requests for\\ninterpretations of regulations within the context of particular facts\\n\\n\\n 85 Id. at 200.\\n 86 617 F.2d 854, 866 (D.C. Cir. 1980) (internal quotation marks omitted).\\n\\n\\n\\n\\n 27\\n\\fencountered while conducting an audit of a firm.”87 Evidence revealed\\nthat agency auditors did not simply regard the contested memoranda\\nas persuasive or advisory, but that the memoranda “were retained and\\nreferred to as precedent.”88 In particular, the D.C. Circuit determined\\nthat auditors could not “freely disregard[]” these memoranda, but\\nwould request they be “rescinded, amended, or referred to a higher\\nauthority.”89 Bound by the directions contained therein, agency\\nauditors then “actually applied” these directions in their “dealings\\nwith the public.”90 These features led the D.C. Circuit to conclude that\\nthe memoranda were not simply pre‐decisional legal advice, but the\\nproduct of the decision‐making process. The agency had, through the\\ncirculation of these documents, “promulgated a body of secret law.”91\\n\\n Similarly, in Tax Analysts v. Internal Revenue Service, the D.C.\\nCircuit found that legal memoranda issued by the IRS’s Office of Chief\\nCounsel to officials in the field constituted “working law” even though\\nthe memoranda were “nominally non‐binding.”92 Despite their\\nnominally advisory status, the memoranda had been distributed to\\nensure “the promotion of uniformity throughout the country on\\n\\n\\n 87 Id. at 858.\\n 88 Id. at 869.\\n 89 Id.\\n 90 Id.\\n 91 Id.\\n 92 117 F.3d 607, 617 (D.C. Cir. 1997).\\n\\n\\n\\n\\n 28\\n\\fsignificant questions of tax law.”93 Because these memoranda\\nfunctioned as precedent rather than mere guidance, the D.C. Circuit\\nconcluded that they constituted “working law” rather than pre‐\\ndecisional advice.94\\n\\n As we have previously noted, “[o]ur Court has relatively little\\ncase law examining the ‘working law’ principle.”95 Those few\\nprecedents we do have, however, are entirely consistent with the\\nprinciple that emerges from the D.C. Circuit cases—namely, that\\nworking law must be binding.96\\n\\n To decide the instant case, we need not reach a comprehensive\\ndefinition of “working law.” But we do identify a few guiding\\nprinciples to district courts faced with the task of determining whether\\na document is functionally binding and hence, “working law.” Such\\nprinciples include: whether agency officials feel free to disregard the\\ndocument’s instructions;97 whether an agency superior distributes the\\n\\n\\n\\n\\n 93 Id. (internal quotation marks omitted).\\n 94 Id. at 619.\\n 95 Brennan Ctr., 697 F.3d at 201.\\n 96 See id. at 198 (equating “working law” with “final opinions” or reports\\nthat have “operative effect”); N.Y. Times II, 806 F.3d at 687 (explaining that OLC\\nopinions are not “working law” subject to disclosure because “[a]t most, they\\nprovide, in their specific contexts, legal advice as to what a department or agency\\nis permitted to do” (internal quotation marks omitted)).\\n 97 See Coastal States, 617 F.2d at 869.\\n\\n\\n\\n\\n 29\\n\\fdocument to subordinates (rather than vice versa); 98 whether agency\\nsuperiors direct their subordinates to follow the document’s\\ninstructions;99 whether the document is applied in the agency’s\\ndealings with the public;100 and whether failure to follow a document’s\\ninstructions provides cause for professional sanction. These factors all\\nprovide indications as to whether a document has become binding on\\nagency officials and therefore represents an agency’s “effective law\\nand policy.”101\\n\\n ii. Express Adoption\\n\\n Occasionally, documents drafted as pre‐decisional material will\\nultimately be recycled and reissued as an agency’s “working law.” The\\ndoctrine of “express adoption” describes a process by which courts can\\ndiscern whether a document first drafted as legal or policy advice has\\nbecome an agency’s “effective law and policy.”\\n\\n For instance, an agency’s director might receive a memorandum\\nfrom counsel advising him or her how to conduct a program in\\naccordance with law. The director might then distribute that\\ndocument to subordinates with instructions to obey the advice\\nrendered therein. After such distribution, the document is no longer\\nprivileged. The reason is straightforward: while the initial\\n\\n 98 See Jordan v. U.S. Depʹt of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).\\n 99 Id.\\n 100 Coastal States, 617 F.2d at 866.\\n 101 Sears, 421 U.S. at 153.\\n\\n\\n\\n\\n 30\\n\\fcommunication was deliberative and pre‐decisional, the subsequent\\ncommunication was a promulgation of “working law,” and therefore\\npost‐decisional and no longer privileged.\\n\\n Because the adoption process is usually internal and hidden\\nfrom public view, our Court’s “express adoption” cases have generally\\nlooked for external evidence that such adoption has occurred. In New\\nYork Times Co. v. Department of Justice (“New York Times I”), for instance,\\nwe held that certain Government disclosures fatally undermined the\\nGovernment’s claims that an (initially classified and advisory) OLC\\nmemorandum was privileged.102 We noted that senior government\\nofficials engaged in “an extensive public relations campaign to\\nconvince the public” of the lawfulness of a government program,103\\nand we observed that Attorney General Eric Holder invoked the\\ndisputed OLC memorandum as authority for the purposes of that\\ncampaign.104 We also highlighted the Senate testimony of then‐\\nAssistant to the President for Homeland Security and\\nCounterterrorism (and incoming Director of the CIA) John O. Brennan\\nthat “Office of Legal Counsel advice establishes the legal boundaries\\n\\n\\n\\n\\n 102 See N.Y. Times I, 756 F.3d at 116.\\n 103 Id. at 114.\\n 104Id. at 116; see also Oversight of the U.S. Department of Justice Before the\\nSenate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013), available at\\nhttps://fas.org/irp/congress/2013_hr/doj.pdf (explaining that the relevant legal\\nstandard would be “more clear if it is read in conjunction with the underlying\\nOLC advice”).\\n\\n\\n\\n\\n 31\\n\\fwithin which we can operate.”105 Together, these statements revealed\\nthat the OLC memorandum was no longer simply advice to a policy‐\\nmaker, but that the Government afforded the memorandum binding\\nforce within the Executive Branch as its “effective law and policy.”106\\n\\n Although less explicit, our decision in National Council of La Raza\\nv. Department of Justice, rests on similar reasoning.107 In that case, we\\nheld that the Department of Justice expressly adopted a 2002 OLC\\n\\n 105 Id. at 111; see also id. at 116. (“[T]he deliberative process privilege [and]\\nthe attorney‐client privilege may not be invoked to protect a document adopted\\nas, or incorporated by reference into, an agency’s policy. Here, the Government\\nhas done so by publicly asserting that OLC advice ‘establishes the legal\\nboundaries within which we can operate.’”) (internal quotation marks and\\ncitations omitted). In context, Mr. Brennan’s statement clearly refers specifically to\\nOLC advice concerning the Government’s targeted killing program. See\\nNomination of John O. Brennan to be Director of the Central Intelligence Agency:\\nHearing Before the S. Select Comm. on Intelligence, 113 Cong. 44 (Feb. 7, 2013)\\n(“Brennan Hearing”), https://www.intelligence.senate.gov/hearings/open‐hearing‐\\nnomination‐john‐o‐brennan‐be‐director‐central‐intelligence‐agency#.\\n 106 To be clear, the Government’s public statements serve as express\\nevidence that the Government adopted the OLC memorandum as binding on the\\nCIA. The remarks themselves do not, however, constitute adoption. Indeed, Mr.\\nBrennan (who was not yet CIA Director when he made these statements), lacked\\nthe authority to adopt the OLC memorandum as binding authority. Adoption\\noccurs when an agency itself accepts a previously deliberative document as\\nbinding, or actually acts (or refrains from acting) pursuant to the binding\\ninstruction (i.e., as “working law”) of that document. See Elec. Frontier Found. v.\\nU.S. Depʹt of Justice, 739 F.3d 1, 11 (D.C. Cir. 2014).\\n 107 La Raza, 411 F.3d at 350. Admittedly, our opinion in La Raza is\\nsomewhat imprecise regarding whether “adoption” or “incorporation” provided\\nthe precise basis for our decision, or even whether there is a difference between\\nthe two. As we define and explain the terms, however, La Raza is best understood\\nas a case of express adoption.\\n\\n\\n\\n\\n 32\\n\\fmemorandum authorizing state governments to make arrests for civil\\nviolations of federal immigration provisions.108 We noted that the\\nAttorney General and his senior staff repeatedly invoked the OLC\\nmemorandum not just to defend its own policy, but as embodying this\\nnew policy.109 These official statements, we explained,\\n“demonstrate[d] that [DOJ] regarded the Memorandum as the\\nexclusive statement of . . . its new policy.”110 Moreover, DOJ’s effective\\npromulgation of this OLC memorandum, as revealed in its public\\nstatements, carried substantive legal effects for “what a third party—\\nstate and local law enforcement—should and could lawfully do.”111 The\\nstatements therefore amounted to “powerful evidence that [DOJ]\\nexplicitly adopted the OLC Memorandum as part of its policy.”112\\n\\n Similarly, in Brennan Center for Justice v. Department of Justice, we\\nfound that public statements revealed that the United States Agency\\nfor International Development (“USAID”) had adopted an OLC\\nmemorandum.113 In particular, we pointed to a USAID policy\\n\\n\\n 108 Id. at 357‐58.\\n 109 Id. at 353‐55.\\n 110 Id. at 357.\\n 111 Id. at 359 (internal quotation marks omitted).\\n 112 Id. at 359–60.\\n 113 Brennan Ctr., 697 F.3d at 204‐05. As in La Raza, our opinion in Brennan\\nCenter is unclear about whether “adoption” or “incorporation” provided the\\nprecise basis for our decision. Again, however, as we understand and explain the\\nterms here, Brennan Center is best understood as a case of express adoption.\\n\\n\\n\\n\\n 33\\n\\fdocument explaining that OLC had “determined” that a statutory\\nfunding restriction “only may be applied to foreign non‐governmental\\norganizations and public international organizations.”114 Later, a\\nsenior USAID official confirmed that OLC’s determination had\\neffectively dictated USAID’s new approach.115 Taken together, these\\nUSAID statements provided powerful evidence that senior agency\\nofficials related to OLC’s legal advice as binding authority, i.e. as\\n“working law.” We therefore found that USAID adopted the OLC\\nmemorandum.\\n\\n iii. Incorporation by Reference\\n\\n A close cousin to the doctrine of “express adoption” is the\\ndoctrine of “incorporation by reference.” Much like adoption, an\\nagency incorporates a document by reference when it transforms a\\npreviously advisory document into binding “working law.”116 But\\nwhereas in “express adoption” cases we look for indications that an\\nagency relates to the document as binding, in cases of “incorporation\\n\\n\\n\\n 114 Id. at 204.\\n 115Id. (citing congressional testimony of Randall Tobias, the U.S. Global\\nAIDS Coordinator, who explained that he was “simply following the legislation\\nand the advice to implement that”).\\n 116When a party claims that a previously privileged document has been\\n“incorporated by refence,” a court’s task is usually to decide whether a reference\\nto that document itself promulgates the document as binding law. By contrast, in\\nmost “express adoption” cases, the court inquires whether an agency’s remarks\\nabout a previously privileged document provide evidence that the document has\\nalready been promulgated as working law. See note 106, ante.\\n\\n\\n\\n\\n 34\\n\\fby reference,” we identify the agency’s enactment of that document as\\nits law or policy through explicit textual reference in a final decision.117\\n\\n The D.C. Circuit first recognized the doctrine of “incorporation\\nby reference” in a 1969 case, American Mail Line, Ltd. v. Gulick.118 There,\\nthe court held that by stating “publicly in [a] ruling that its action was\\nbased upon [a specific] memorandum, [and] giving no other reasons\\nor basis for its action,” the Maritime Subsidy Board of the Department\\nof Commerce forfeited that memorandum’s “intra‐agency status” and\\nincorporated it into “a public record” that “must be disclosed.”119\\n\\n Six years later, in Sears, the Supreme Court endorsed the D.C.\\nCircuit’s approach, holding that “if an agency chooses expressly to . . .\\nincorporate by reference an intra‐agency memorandum previously\\ncovered by Exemption 5 in what would otherwise be a final opinion,\\nthat memorandum may be withheld only on the ground that it falls\\nwithin the coverage of some exemption other than Exemption 5.”120\\n\\n Importantly, American Mail Line and Sears limit “incorporation\\nby reference” to circumstances where the disputed memorandum is\\n\\n\\n 117 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 254 (2006) (describing an\\nagency interpretive rule as “[i]ncorporating the legal analysis of a memorandum .\\n. . solicited from [OLC]”); see also Dispensing of Controlled Substances To Assist\\nSuicide, 66 Fed. Reg. 56,607‐02 (Nov. 9, 2001) (promulgating an interpretive rule\\nwhile incorporating a memorandum from the Attorney General).\\n 118 411 F.2d 696 (D.C. Cir. 1969).\\n 119 Id. at 703.\\n 120 421 U.S. at 161.\\n\\n\\n\\n\\n 35\\n\\frelied on in a “final opinion” or “ruling.” To decide the instant case,\\nwe need not define these terms precisely.121 But we think it clear that\\nincorporation occurs only when the incorporating “opinion” is itself a\\ndocument with functionally binding effect. This limitation is\\nsignificant; a decisionmaker’s mere statements expressing his or her\\nreliance on the reasoning of a separate memorandum do not amount\\nto “incorporation” of that memorandum. The limitation is also\\nsensible. Statements such as “we checked it with counsel,” or “we\\nrelied on the assessments of experts” are standard responses in\\ncongressional testimony or public statements. Appropriately, such\\nstatements cannot “incorporate by reference” external memoranda\\nbecause such statements do not themselves have binding effect, either\\nwithin the agency or on the public.\\n\\n In sum, a previously privileged document is subject to\\ndisclosure under the doctrine of “incorporation by reference” only\\nwhen an agency’s formal opinion or determination of law or policy\\nexpressly references and relies on that document and its reasoning as\\nthe basis for a decision.\\n\\n b. Application\\n\\n The above principles dictate the outcome of this case. The ACLU\\nargues that “reliance on legal analysis as a basis for its operational\\n\\n\\n 121 Among the open issues that we do not decide: whether an incorporating\\n“final opinion” must (1) be public; (2) adjudicate the rights of individual, private\\nparties; or (3) have the “force and effect of law,” see Chrysler Corp. v. Brown, 441\\nU.S. 281, 282 (1979).\\n\\n\\n\\n\\n 36\\n\\fdecisions transforms that analysis into working law.”122 Not so. As we\\nhave explained, a document is only “working law” when it operates\\nas functionally binding authority on agency decision‐makers. Here,\\nOLC 10 was drafted as legal advice rather than binding authority and\\nso was not “working law” when created.123 To be sure, a document\\nfirst drafted as legal advice can still be adopted as working law or\\nincorporated into agency decisions. But mere agreement with a\\ndocument’s reasoning and conclusion is insufficient to transform\\nadvice into law. Instead, the document must be treated as binding by\\nthe agency (i.e. “adoption”) or explicitly relied upon in a formal\\ndecision (i.e. “incorporation by reference”).\\n\\n Here, there is no evidence that the Government ever “adopted”\\nOLC 10 as binding; nor has the ACLU identified a single agency\\nopinion that incorporates OLC 10 by reference.\\n\\n The ACLU’s arguments to the contrary are unavailing. The\\nACLU first points to a publicly released 2006 “White Paper” that\\ncontains “much of the legal reasoning” in OLC 10.124 As we have\\n\\n 122 Reply Br. Appellants 3‐4.\\n 123See note 72, ante; see also Elec. Frontier Found., 739 F.3d at 9 (holding that\\nan OLC opinion submitted to the FBI did not constitute “working law” because\\n“OLC is not authorized to make decisions about the FBIʹs investigative policy, so\\nthe OLC Opinion cannot be an authoritative statement of the agencyʹs policy”); see\\nalso Citizens for Responsibility & Ethics in Washington v. United States Depʹt of Justice,\\n922 F.3d 480, 486 (D.C. Cir. 2019) (“An OLC opinion in the latter category qualifies\\nas the ‘working law’ of an agency only if the agency has ‘adopted’ the opinion as\\nits own.”).\\n 124 Br. Appellants 25 (brackets omitted). See also note 23, ante.\\n\\n\\n\\n\\n 37\\n\\fexplained, however, disclosure of similar information to that contained\\nin documents protected by the attorney‐client or deliberative process\\nprivileges does not waive the privilege. These privileges protect a\\ncommunication, not information.125\\n\\n Next, the ACLU contends that a series of public statements by\\nthe Government indicates either that OLC 10 is working law, or that\\nthe Government expressly adopted OLC 10, or that it incorporated\\nOLC 10 by reference.126 In particular, the ACLU draws our attention to\\n(1) a press briefing during which Attorney General Gonzalez\\ndescribed OLC 10 as analyzing the “legal underpinnings” of the Stellar\\nWind program;127 (2) an internal agency report, which states that OLC\\n10 provided “a new legal basis” for the program;128 and (3) Attorney\\n\\n 125 See Section II.B.1, ante.\\n 126The Government urges us not to consider certain public statements by\\nthe Government that were available when the parties were before the District\\nCourt, but that the ACLU did not explicitly raise in its briefing below. These\\nstatements include the 2005 White House press briefing by Attorney General\\nGonzales, the 2006 Senate testimony (also by Gonzales), and the 2006 DOJ White\\nPaper. We decline to disregard these materials. The Government is, of course,\\ncorrect that we do not ordinarily hear arguments made for the first time on\\nappeal. See, e.g., Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018).\\nThe ACLU’s reference to these statements does not constitute a new argument,\\nhowever, but simply new evidence in support of old arguments, which “appeals\\ncourts may entertain.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir.\\n2006) Moreover, the Government’s subsequent public statements are precisely the\\nsort of materials of which we may take judicial notice. See N.Y. Times I, 756 F.3d at\\n110 n.8. We therefore consider these statements in evaluating the ACLU’s claims.\\n 127 See 2005 Press Briefing, note 19, ante.\\n 128 See Joint IG Report, note 23, ante, at 37.\\n\\n\\n\\n\\n 38\\n\\fGeneral Gonzalez’s testimony before the Senate, in which he stated\\nthat he “agreed with [OLC’s] legal analysis.”129\\n\\n These governmental disclosures illustrate, at most, the\\nfollowing: that OLC analyzed a legal question, that the Attorney\\nGeneral reviewed that analysis and agreed with it, and that the\\nAttorney General then certified the program. None of the\\ngovernmental disclosures indicate that the Attorney General (or any\\nother official) ever distributed the OLC memorandum as binding\\nprecedent, or that officials within NSA or another agency ever\\nregarded OLC 10 as binding authority.130 Nor do any of these\\ndisclosures represent an official decision or final opinion that explicitly\\nreferences and relies on OLC 10; press briefings, congressional\\ntestimony, white papers and inspectors general reports might be\\ninformative, but they rarely, if ever, amount to official decisions or\\n“final opinions.”\\n\\n\\n 129 See 2006 Hearing, note 24, ante.\\n 130 The section of the IG Report to which the ACLU points (entitled “A\\nNew Legal Basis for the Program is Adopted”) does not constitute evidence that\\nOLC 10 was “expressly adopted” for several reasons: first, while the ACLU\\nsuggests that the “new legal basis” mentioned here refers to OLC 10, it seems that\\nthis section of the IG Report in fact describes a period prior to the writing of OLC\\n10. Moreover, it is not even clear that the “new legal basis” discussed here refers\\nto a specific document at all. On the contrary, it seems more likely that the phrase\\n“new legal basis” simply refers to a new interpretation of already‐extant\\nconstitutional and statutory law. In other words, there is no reason to assume that\\nthe IG Report used the word “adoption” as we employ it in this opinion; the IG\\nReport may simply describe a shift in Administration lawyers’ best\\nunderstanding of applicable law, not a promulgation of a new “policy.”\\n\\n\\n\\n\\n 39\\n\\f It follows that OLC 10 was not created as working law, was\\nnever adopted as working law, and was never incorporated by\\nreference. We therefore hold that OLC 10 is protected by the\\ndeliberative process and attorney‐client privileges, and was properly\\nwithheld under Exemption 5.\\n\\n C. The Intelligence Program Documents\\n\\n We also affirm the District Court’s holding that the six\\nintelligence program documents are exempt from disclosure under\\nFOIA Exemptions 1 and 3.\\n\\n Exemption 1 permits agencies to withhold records that have\\nbeen “specifically authorized under criteria established by an\\nExecutive order to be kept secret in the interest of national defense or\\nforeign policy and . . . are in fact properly classified pursuant to such\\nExecutive order.”131 As relevant here, Executive Order 13,526 permits\\nclassification of information if it pertains to “intelligence sources or\\nmethods” or “foreign relations or foreign activities of the United\\nStates,” where “unauthorized disclosure of the information reasonably\\ncould be expected to result in damage to the national security.”132\\n\\n FOIA Exemption 3 applies to records “specifically exempted\\nfrom disclosure by statute.”133 Here, the Government has invoked\\n\\n 131 5 U.S.C. § 552(b)(1)(A).\\n 132 Exec. Order No. 13,526, 75 Fed. Reg. 707, 707 § 1.1(a)(3)‐(4), 709 § 1.4(c)‐\\n(d) (Dec. 29, 2009).\\n 133 5 U.S.C. § 552(b)(3).\\n\\n\\n\\n\\n 40\\n\\fseveral statutes, including the National Security Act, which requires\\nthat the Director of National Intelligence “protect intelligence sources\\nand methods from unauthorized disclosure.”134 The ACLU does not\\ndispute that each law qualifies as an exemption statute under\\nExemption 3.135\\n\\n The Government bears the burden of establishing that these\\nexemptions apply, but it can do so by submitting affidavits showing\\nthat the statute’s application “appears logical or plausible.”136 Such\\naffidavits must describe “with reasonably specific detail” how the\\nwithheld information “logically falls within the claimed exemption,”\\nand must not be “controverted by either contrary evidence in the\\nrecord nor by evidence of agency bad faith.”137\\n\\n Here, the Government has met its burden. The requested\\nintelligence program documents concern highly sensitive surveillance\\nprograms.138 A senior intelligence official has attested that each\\n\\n 134 50 U.S.C. § 3024(i)(1). In addition, the Government invokes statutory\\nprovisions related to the NSA, CIA, and communications intelligence activities\\ngenerally. See 50 U.S.C. § 3605 (NSA); 50 U.S.C. § 3507 (CIA); 18 U.S.C. § 798\\n(setting forth criminal penalties for disclosure of classified information).\\n 135ACLU I, 2017 WL 1155910, at *16; see also CIA v. Sims, 471 U.S. 159, 168\\n(1985) (holding that an earlier version of the relevant National Security Act\\nprovision “qualifies as a withholding statute under Exemption 3”).\\n 136Wilner v. Natʹl Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (internal\\nquotation marks omitted).\\n 137 Id. (internal quotation marks omitted).\\n 138 See, e.g., J.A. 178‐82.\\n\\n\\n\\n\\n 41\\n\\fdisputed document concerns “particular intelligence sources, and\\nrelated methods used to collect and process foreign communications”;\\nthat the existence of these sources and methods is ”currently and\\nproperly classified”; and that disclosure of any meaningful part of\\nthese documents “would reveal core NSA foreign intelligence\\nactivities.”139\\n\\n In response to these declarations, the ACLU suggests that the\\nGovernment failed to segregate and release non‐exempt legal\\nanalysis.140 The ACLU points out that “the legal memoranda within\\nthe packages are quite lengthy,”141 and that, in light of the “volume\\nand breadth of public information” about the Stellar Wind program,\\n“it strains credulity to claim that disclosure of pure legal analysis\\nrelated to the program could damage national security today.”142\\n\\n Our credulity is not so easily strained. As we have previously\\nobserved, “the very fact that legal analysis was given concerning a\\nplanned operation would risk disclosure of the likelihood of that\\n\\n\\n\\n\\n 139Id. at 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for\\nPolicy and Records, NSA). The Government’s classified declaration contains more\\ndetail about these documents’ sensitivity. See id. at 447.\\n\\n FOIA “requires agencies and courts to differentiate among the contents\\n 140\\n\\nof a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.”\\nAbramson, 456 U.S. at 626.\\n 141 Br. Appellants 42.\\n 142 Id. at 39.\\n\\n\\n\\n\\n 42\\n\\foperation.”143 Similarly, disclosure of even “[m]inor details of\\nintelligence information may reveal more information than their\\napparent insignificance suggests because, much like a piece of [a]\\njigsaw puzzle, each detail may aid in piecing together other bits of\\ninformation even when the individual piece is not of obvious\\nimportance in itself.”144 We have long recognized that “in some\\ncircumstances legal analysis could be so intertwined with facts entitled\\nto protection that disclosure of the analysis would disclose such\\nfacts.”145 Moreover, in this case, a senior national security official has\\naffirmed that the legal analysis contained in these memoranda is\\n“inextricably intertwined” with material that is both classified and\\nprotected by statute.146\\n\\n In light of “the relative competencies of the executive and\\njudiciary,” we generally adopt a “deferential posture in FOIA cases\\nregarding the uniquely executive purview of national security.”147\\n\\n\\n\\n\\n 143 N.Y. Times I, 756 F.3d at 119.\\n 144 Wilner, 592 F.3d at 73 (internal quotation marks and brackets omitted).\\n 145 N.Y. Times I, 756 F.3d at 119; see also N.Y. Times II, 806 F.3d at 687\\n(holding that certain OLC documents are entitled to protection because “it would\\nbe difficult to redact any arguably disclosable lines of legal analysis from these\\ndocuments without disclosing the contents of [another protected] document”).\\n 146J.A. 450 ¶ 4 (Supplemental Declaration of David J. Sherman, Associate\\nDirector for Policy and Records, NSA).\\n 147 Wilner, 592 F.3d at 76 (internal quotation marks omitted).\\n\\n\\n\\n\\n 43\\n\\fAccordingly, we again decline to “second‐guess the predictive\\njudgments made by the government’s intelligence agencies.”148\\n\\n We therefore hold that the surveillance approval packages were\\nproperly withheld under Exemptions 1 and 3.\\n\\n D. The Request for “Reprocessing”\\n\\n Lastly, we briefly address the ACLU’s request that we “order the\\nre‐processing” of the contested documents in light of several\\ngovernmental disclosures that post‐date the agency’s initial FOIA\\ndecision.149\\n\\n The ACLU identifies three such disclosures: (1) the full Joint IG\\nReport (released in September 2015), (2) OLC 9 (released in February\\n2016), and (3) OLC 8 (released while this appeal was pending).\\nAlthough these disclosures are subsequent to the Government’s initial\\nFOIA decision, the ACLU reminds us that it is “legally entitled to file\\na new FOIA request at any time,” and so urges us to consider these\\ndocuments now in the interests of judicial economy.150\\n\\n The Government responds that these disclosures cannot be the\\nbasis for such an order because “[a]s a general rule, a FOIA decision is\\nevaluated as of the time it was made and not at the time of a court’s\\n\\n\\n\\n 148 Id. (internal quotation marks omitted).\\n 149 Br. Appellants 47.\\n 150 Reply Br. Appellants 20.\\n\\n\\n\\n\\n 44\\n\\freview.”151 Relying on precisely this rule, the District Court declined\\nto order reprocessing.152\\n\\n Today, we reaffirm the general rule, and further hold that a\\ncourt reviewing a FOIA decision must not order reprocessing simply\\nto reassure itself that a correct decision remains current. As we have\\npreviously observed, “[t]o require an agency to adjust or modify its\\nFOIA response based on post‐response occurrences could create an\\nendless cycle of judicially mandated reprocessing each time some\\ncircumstance changes.”153 This case highlights the importance of our\\ngeneral practice. Indeed, one of the disclosures the ACLU urges us to\\nconsider—OLC 8—was released between the filing of the ACLUʹs\\nappellate briefs. Imposing a continuing duty on agencies to update\\ntheir responses to FOIA requests as “potentially relevant” documents\\n(or, as is the case with the Joint IG Report, more sections of a certain\\ndocument) are disclosed piecemeal renders agencies vulnerable to\\nrepeated reprocessing requests mid‐litigation. FOIA does not subject\\nagencies or the courts to such “an endlessly moving target.”154\\n\\n While we have occasionally departed from our general rule and\\nconsidered subsequent developments as part of a FOIA review, we\\nhave done so only in exceptional circumstances. And crucially, we\\n\\n 151 N.Y. Times I, 756 F.3d at 110 n.8.\\n 152 ACLU I, 2017 WL 1155910, at *22.\\n 153 Florez v. C.I.A., 829 F.3d 178, 188 (2d Cir. 2016) (quoting Bonner v. Dep’t\\nof State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)) (internal quotation marks omitted).\\n 154 Bonner, 928 F.2d at 1153 (internal quotation mark omitted).\\n\\n\\n\\n\\n 45\\n\\fhave never ordered an agency to reprocess records simply to reassure\\nourselves that a FOIA decision remains up‐to‐date. In Florez v. Central\\nIntelligence Agency, for instance, we remanded to the District Court in\\nlight of disclosures that post‐dated the Government’s decision to\\nwithhold particular documents.155 Critically, however, we noted that\\nthe agency had already voluntarily reprocessed the documents.156\\nThus, our decision imposed no additional burden on the agency.\\n\\n Similarly, in New York Times I, although we considered post‐\\ndecision disclosures in our review, we did so only because\\nreprocessing was unnecessary to decide whether the withheld\\ndocuments were subject to disclosure.157 In that case, the CIA had\\nreplied to a FOIA request relating to a CIA targeted killing program\\nwith a “Glomar response”158—neither confirming nor denying the\\nexistence of a document.159 The CIA justified its Glomar response by\\nstating that “the government has never disclosed . . . whether the CIA\\nhas an operational role in the use of targeted lethal force or is\\n\\n\\n 155 Florez, 829 F.3d at 187‐88.\\n 156 Id. at 188.\\n 157N.Y. Times I, 756 F.3d at 111 n.8 (“The Government’s post‐request\\ndisclosures go to the heart of the contested issue, and, as discussed below, are\\ninconsistent with some of its prior claims.” (internal quotation marks, citations,\\nand brackets omitted)).\\n\\n The term derives from the Hughes Glomar Explorer, a vessel purportedly\\n 158\\n\\nowned and operated by the CIA, which the Government refused to\\nacknowledge. See Phillippi v. CIA, 546 F.2d 1009, 1010‐12 (D.C. Cir. 1976).\\n 159 N.Y. Times I, 756 F.3d at 103, 105.\\n\\n\\n\\n\\n 46\\n\\fauthorized to use such force.”160 This statement was directly\\ncontradicted by the post‐request disclosures that discussed the CIA\\nprogram explicitly.161 There was thus no question that, at the time of\\nthe appeal, the Governmentʹs “Glomar response” was no longer\\nsustainable.162\\n\\n The post‐request disclosures at issue in New York Times I were\\ntherefore not just potentially relevant, but clearly dispositive of the\\nGovernment’s secrecy claims. Under such circumstances, declining to\\ntake judicial notice of public statements would serve no purpose.\\nIgnoring such statements would have needlessly added work for the\\ncourts and simply delayed the inevitable for the agencies.\\n\\n In sum, our Court has only departed from the general rule—that\\nan agency’s FOIA decision is evaluated as of the time it was made—\\nwhen doing so is in the clear interest of judicial economy and would\\nnot burden the agency with prudential reprocessing. Those are not the\\ncircumstances here. The Government has not already reprocessed the\\nmaterial in light of the subsequent disclosures, and the subsequent\\n\\n\\n\\n\\n 160 Id. at 122 (brackets omitted).\\n 161Id. (“With CIA identified, the [Government’s] main argument for the\\nuse of Glomar . . . responses evaporates.”).\\n 162See Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a\\nGlomar response when the existence or nonexistence of the particular records\\ncovered by the Glomar response has been officially and publicly disclosed.”).\\n\\n\\n\\n\\n 47\\n\\fdisclosures do not on their face plainly undermine the Government’s\\nclaimed privilege.\\n\\n Accordingly, we decline to order reprocessing in light of the\\nsubsequent disclosures of portions of the Joint IG Report, OLC 9, and\\nOLC 8.\\n\\n III. CONCLUSION\\n\\n To summarize, we hold as follows:\\n\\n (1) A document reflects an agency’s “working law” when the\\n agency regards that document as functionally binding\\n authority. “Adoption” and “incorporation by reference” are\\n means by which an otherwise privileged document becomes\\n an agency’s “working law.”\\n\\n (2) “Express adoption” is a basis for disclosure of a previously\\n privileged document where an agency’s statements indicate\\n that it now acts (or refrains from acting) pursuant to the\\n document’s functionally binding authority.\\n\\n (3) “Incorporation by reference” is a basis for disclosure of a\\n previously privileged document where an agency’s formal\\n opinion or ruling explicitly relies on that document and its\\n reasoning in reaching a decision.\\n\\n (4) OLC 10 was properly withheld under FOIA Exemption 5\\n (privileged communications).\\n\\n\\n\\n\\n 48\\n\\f (5) The six intelligence program documents at issue were\\n properly withheld under FOIA Exemptions 1 (classified\\n information) and 3 (material shielded from disclosure by\\n other statutes).\\n\\n (6) Because FOIA decisions must be evaluated as of the time of\\n the agency decision, courts should not order reprocessing\\n simply to reassure themselves that a FOIA decision remains\\n current in light of subsequent disclosures. We therefore\\n decline to order reprocessing.\\n\\n For the foregoing reasons, the August 22, 2017 judgment of the\\nDistrict Court is AFFIRMED.\\n\\n\\n\\n\\n 49\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1998,"cells":{"id":{"kind":"number","value":4615461,"string":"4,615,461"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Bernard Greenspan"},"decision_date":{"kind":"string","value":"2019-05-01"},"docket_number":{"kind":"string","value":"17-2458"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Present: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges 1.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Circuit Judge\", \"type\": \"010combined\", \"text\": \"UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\\n April 24, 2019\\n No. 17-2548\\n\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n BERNARD GREENSPAN,\\n Appellant\\n\\n\\n (D.N.J. No. 2-16-cr-00114-001)\\n\\nPresent: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges\\n\\n\\n 1. Letter Motion by Appellee USA to Amend the Opinion dated April 17, 2019\\n\\n 2. Letter Response by Appellant to Letter Motion to Amend the Opinion\\n dated April 17, 2019\\n\\n Respectfully,\\n\\n Clerk/ARR/dwb\\n\\n_________________________________ORDER________________________________\\n\\n Appellee’s motion to amend the opinion dated April 17, 2019, is granted in part. The\\nopinion shall be amended in minor respects on pp. 3, 8, 10, 13, 18, 25, 29-30, and 37. These\\namendments do not alter the Court’s disposition or judgment as previously entered. So the\\ndate for entry of judgment will not be altered. The Clerk is directed to enter the amended\\nopinion on the Court’s docket.\\n\\n By the Court,\\n\\n s/Stephanos Bibas\\n Circuit Judge\\nDated: May 1, 2019\\nARR/cc: MEC; JFR; SGS; PG\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4392714/\", \"author_raw\": \"Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HARDIMAN"},"judge2":{"kind":"string","value":"KRAUSE"},"judge3":{"kind":"string","value":"BIBAS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4615461/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Bernard Greenspan\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-05-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\n April 24, 2019\n No. 17-2548\n\n\n UNITED STATES OF AMERICA\n\n v.\n\n BERNARD GREENSPAN,\n Appellant\n\n\n (D.N.J. No. 2-16-cr-00114-001)\n\nPresent: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges\n\n\n 1. Letter Motion by Appellee USA to Amend the Opinion dated April 17, 2019\n\n 2. Letter Response by Appellant to Letter Motion to Amend the Opinion\n dated April 17, 2019\n\n Respectfully,\n\n Clerk/ARR/dwb\n\n_________________________________ORDER________________________________\n\n Appellee’s motion to amend the opinion dated April 17, 2019, is granted in part. The\nopinion shall be amended in minor respects on pp. 3, 8, 10, 13, 18, 25, 29-30, and 37. These\namendments do not alter the Court’s disposition or judgment as previously entered. So the\ndate for entry of judgment will not be altered. The Clerk is directed to enter the amended\nopinion on the Court’s docket.\n\n By the Court,\n\n s/Stephanos Bibas\n Circuit Judge\nDated: May 1, 2019\nARR/cc: MEC; JFR; SGS; PG\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Bernard Greenspan\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-05-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\\n April 24, 2019\\n No. 17-2548\\n\\n\\n UNITED STATES OF AMERICA\\n\\n v.\\n\\n BERNARD GREENSPAN,\\n Appellant\\n\\n\\n (D.N.J. No. 2-16-cr-00114-001)\\n\\nPresent: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges\\n\\n\\n 1. Letter Motion by Appellee USA to Amend the Opinion dated April 17, 2019\\n\\n 2. Letter Response by Appellant to Letter Motion to Amend the Opinion\\n dated April 17, 2019\\n\\n Respectfully,\\n\\n Clerk/ARR/dwb\\n\\n_________________________________ORDER________________________________\\n\\n Appellee’s motion to amend the opinion dated April 17, 2019, is granted in part. The\\nopinion shall be amended in minor respects on pp. 3, 8, 10, 13, 18, 25, 29-30, and 37. These\\namendments do not alter the Court’s disposition or judgment as previously entered. So the\\ndate for entry of judgment will not be altered. The Clerk is directed to enter the amended\\nopinion on the Court’s docket.\\n\\n By the Court,\\n\\n s/Stephanos Bibas\\n Circuit Judge\\nDated: May 1, 2019\\nARR/cc: MEC; JFR; SGS; PG\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1999,"cells":{"id":{"kind":"number","value":4616172,"string":"4,616,172"},"name":{"kind":"string","value":"Jennifer SWEDA; Benjamin A. Wiggins; Robert L. Young ; Faith Pickering; Pushkar Sohoni; Rebecca N. Toner, Individually and as Representatives of a Class of Participants and Beneficiaries on Behalf of the University of Pennsylvania Matching Plan, Appellants v. UNIVERSITY OF PENNSYLVANIA; Investment Committee; Jack Heuer"},"name_abbreviation":{"kind":"string","value":"Jennifer Sweda v. University of Pennsylvania"},"decision_date":{"kind":"string","value":"2019-05-02"},"docket_number":{"kind":"string","value":"17-3244"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Third Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Fisher, Roth\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888445/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888446/\", \"author_raw\": \"\"}, {\"author\": \"FISHER, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"PRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______\\n\\n No. 17-3244\\n ______\\n\\nJENNIFER SWEDA; BENJAMIN A. WIGGINS; ROBERT\\n L. YOUNG;\\nFAITH PICKERING; PUSHKAR SOHONI; REBECCA N.\\n TONER,\\n individually and as representatives of a class of participants\\n and\\n beneficiaries on behalf of the University of Pennsylvania\\n Matching Plan,\\n\\n Appellants\\n\\n v.\\n\\n UNIVERSITY OF PENNSYLVANIA; INVESTMENT\\n COMMITTEE; JACK HEUER\\n ______\\n\\n On Appeal from the United States District Court\\n For the Eastern District of Pennsylvania\\n (E.D. Pa. No. 2-16-cv-04329)\\n District Judge: Honorable Gene E.K. Pratter\\n\\n _______\\n\\n Argued October 2, 2018\\n Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: May 2, 2019)\\n\\n\\nJerome J. Schlichter\\nSean E. Soyars\\nKurt C. Struckhoff\\nMichael A. Wolff [ARGUED]\\nSchlichter Bogard & Denton\\n100 South 4th Street, Suite 1200\\nSt. Louis, MO 63102\\n Counsel for Appellants\\n\\n\\nBrian T. Ortelere [ARGUED]\\nMorgan Lewis & Bockius\\n1701 Market Street\\nPhiladelphia, PA 19103\\n\\nChristopher J. Boran\\nMatthew A. Russell\\nMorgan Lewis & Bockius\\n77 West Wacker Drive\\nChicago, IL 60601\\n\\nMichael E. Kenneally\\nMorgan Lewis & Bockius\\n1111 Pennsylvania Avenue, N.W.\\nSuite 800 North\\nWashington, DC 20004\\n Counsel for Appellees\\n\\n\\n\\n\\n 2\\n\\nBrian T. Burgess\\nJaime A. Santos\\nGoodwin Procter\\n901 New York Avenue, NW\\nSuite 900 East\\nWashington, DC 20001\\n\\nAlison V. Douglass\\nJames O. Fleckner\\nGoodwin Procter\\n100 Northern Avenue\\nBoston, MA 02210\\n Counsel for Chamber of Commerce of The United\\nStates of America and American Benefits Council, Amicus\\nAppellees\\n\\nBrian D. Netter\\nMayer Brown\\n1999 K Street, N.W.\\nWashington, DC 20006\\n Counsel for American Association of State Colleges\\nand Universities, American Council on Education,\\nAssociation of American Universities, Association of\\nCommunity College Trustees, Association of Public and\\nLand-Grant Universities, College and University\\nProfessional Association For Human Resources, Council of\\nIndependent Colleges, National Association of Independent\\nColleges and Universities, Amicus Appellees\\n\\nLori A. Martin\\nWilmerHale\\n7 World Trade Center\\n\\n\\n\\n\\n 3\\n\\n250 Greenwich Street\\nNew York, NY 10007\\n\\nSeth P. Waxman\\nPaul R. Wolfson\\nWilmerHale\\n1875 Pennsylvania Avenue, N.W.\\nWashington, DC 20006\\n Counsel for Teachers Insurance & Annuity\\nAssociation of America, Amicus Appellee\\n ______\\n\\n OPINION OF THE COURT\\n ______\\n\\nFISHER, Circuit Judge.\\n Plaintiffs Jennifer Sweda, Benjamin Wiggins, Robert\\nYoung, Faith Pickering, Pushkar Sohoni, and Rebecca Toner,\\nrepresenting a class of participants in the University of\\nPennsylvania’s 403(b) defined contribution, individual\\naccount, employee pension benefit plan, sued Defendants, the\\nUniversity of Pennsylvania and its appointed fiduciaries, for\\nbreach of fiduciary duty, prohibited transactions, and failure to\\nmonitor fiduciaries under the Employee Retirement Income\\nSecurity Act (ERISA), 29 U.S.C. §§ 1001-1461. Plaintiffs\\n(collectively, “Sweda”) alleged that Defendants (collectively,\\n“Penn”), among other things, failed to use prudent and loyal\\ndecision making processes regarding investments and\\nadministration, overpaid certain fees by up to 600%, and failed\\nto remove underperforming options from the retirement plan’s\\nofferings. The District Court dismissed Sweda’s complaint in\\nits entirety. We will reverse the District Court’s dismissal of\\nthe breach of fiduciary duty claims at Counts III and V only\\n\\n\\n\\n\\n 4\\n\\nand remand for further proceedings.\\n I.\\n Sweda and her fellow Plaintiffs-Appellants are current\\nand former Penn employees who participate, or participated, in\\nPenn’s retirement plan (the “Plan”). They sought to represent\\nthe proposed class of Plan participants, 20,000 current and\\nformer Penn employees who had participated in the Plan since\\nAugust 10, 2010. The Defendants are the University of\\nPennsylvania, its Investment Committee, and Jack Heuer, the\\nUniversity’s Vice President of Human Resources. The Plan is\\na defined contribution plan under 29 U.S.C. § 1002(34), tax\\nqualified under 26 U.S.C. § 403(b). The University matches\\nemployees’ contributions up to 5% of compensation.\\n As a 403(b), the Plan offers mutual funds and annuities:\\nthe former through TIAA-CREF and Vanguard Group, Inc.\\nand the latter through TIAA-CREF. Since 2010, the Plan has\\noffered as many as 118 investment options. As of December\\n2014, the Plan offered 78 options: 48 Vanguard mutual funds,\\nand 30 TIAA-CREF options including mutual funds, fixed and\\nvariable annuities, and an insurance company separate account.\\nEffective October 19, 2012, Penn organized its investment\\nfund lineup into four tiers. The TIAA-CREF and Vanguard\\noptions under Tier 1 consisted of lifecycle or target-date funds\\nfor the “Do-it-for-me” investor. Certain core funds were\\ndesignated Tier 2, designed for the “Help-me-do-it” investor\\nlooking to be involved in his or her investment choices without\\nhaving to decide among too many options. Under Tier 3, the\\nPlan offered an “expanded menu of funds” for “the more\\nadvanced ‘mix-my-own’ investor,” and under Tier 4, the Plan\\noffered the option of a brokerage account window for the “self-\\ndirected” investor looking for additional options, subject to\\nadditional fees. Plan participants thereafter could “select a\\n\\n\\n\\n\\n 5\\n\\ncombination of funds from any or all of the investment tiers.”\\nAt the end of 2014, the Plan had $3.8 billion in assets: $2.5\\nbillion invested in TIAA-CREF options, and $1.3 billion\\ninvested in Vanguard options.\\n TIAA-CREF and Vanguard charge investment and\\nadministrative (recordkeeping) fees. Mutual fund investment\\nfees are charged as a percentage of a fund’s managed assets,\\nknown as the expense ratio, and the rate can differ by share\\nclass. The mutual funds in which the Plan invests have two\\nshare classes: retail and institutional. Retail class shares\\ngenerally have higher investment fees than institutional class\\nshares. There are also two common recordkeeping fee models.\\nIn a flat fee model, recordkeeping fees are a set amount per\\nparticipant, whereas in a revenue sharing model, part of an\\noption’s expense ratio is diverted to administrative service\\nproviders. TIAA-CREF and Vanguard charged the Plan under\\nthe revenue sharing model.\\n Sweda alleged numerous breaches of fiduciary duty and\\nprohibited transactions. She brought six counts against all\\nDefendants, and one count against the University. The first six\\ncounts alleged breaches of fiduciary duty in violation of 29\\nU.S.C. § 1104(a)(1) (Counts I, III, and V) and prohibited\\ntransactions in violation of 29 U.S.C. § 1106(a)(1) (Counts II,\\nIV, and VI). Sweda also alleged that the University failed to\\nadequately monitor its appointed fiduciaries in Count VII.\\n Penn moved to dismiss the complaint, and the District\\nCourt granted the motion. The court determined that Sweda\\nfailed to state a claim for fiduciary breach under Bell Atl. Corp.\\nv. Twombly, 550 U.S. 544 (2007) and Renfro v. Unisys Corp.,\\n671 F.3d 314 (3d Cir. 2011), because her factual allegations\\ncould also indicate rational conduct. As for the prohibited\\ntransaction claims, the court held that the service agreements\\n\\n\\n\\n\\n 6\\n\\ncould not constitute prohibited transactions without an\\nallegation that Penn had the subjective intent to benefit a party\\nin interest. The court dismissed Count VII after determining\\nthat it was duplicative of the claims at Counts I, III, and V.1\\nSweda now appeals.\\n II.\\n The District Court had jurisdiction under 28 U.S.C.\\n§ 1331 and 29 U.S.C. § 1132(e)(1) and (f). We have\\njurisdiction under 28 U.S.C. § 1291. We conduct plenary\\nreview of an order granting a motion to dismiss for failure to\\nstate a claim under Federal Rule of Civil Procedure (12)(b)(6).\\nRenfro, 671 F.3d at 320; Burtch v. Milberg Factors, Inc., 662\\nF.3d 212, 220 (3d Cir. 2011).\\n III.\\nA. Pleadings standards for claims brought under ERISA\\n The question in this case is whether Sweda stated a\\nclaim that should survive termination at the earliest stage in\\nlitigation. When a court grants a motion to dismiss a complaint\\nunder Rule 12(b)(6), it deprives a plaintiff of the benefit of the\\ncourt’s adjudication of the merits of its claim before the court\\nconsiders any evidence. That is why, in exercising our plenary\\nreview, we apply the same standard as the district court and\\nconstrue the complaint “in the light most favorable to the\\nplaintiff,” Santomenno ex rel. John Hancock Tr. v. John\\nHancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014)\\n(citation and internal quotation marks omitted), to determine\\n\\n 1\\n Sweda does not address the District Court’s dismissal\\nof Count VII in her opening brief. Therefore, the District\\nCourt’s dismissal of Count VII is not before us on appeal.\\nBarna v. Bd. of Sch. Dir. of the Panther Valley Sch. Dist., 877\\nF.3d 136, 145 (3d Cir. 2017).\\n\\n\\n\\n\\n 7\\n\\nwhether it “contain[s] sufficient factual matter, accepted as\\ntrue, to ‘state a claim to relief that is plausible on its face,’”\\nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.\\nCorp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]e disregard\\nrote recitals of the elements of a cause of action, legal\\nconclusions, and mere conclusory statements.” James v. City\\nof Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A claim\\n“has facial plausibility when the pleaded factual content allows\\nthe court to draw the reasonable inference that the defendant is\\nliable for the misconduct alleged.” Thompson v. Real Estate\\nMortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (citation and\\ninternal quotation marks omitted).\\n Here, the District Court held that Sweda’s complaint did\\nnot state a plausible claim, observing at various points in its\\nmemorandum that “[a]s in Twombly, the actions are at least\\n‘just as much in line with a wide swath of rational and\\ncompetitive business strategy’ in the market as they are with a\\nfiduciary breach.” Sweda v. Univ. of Pennsylvania, No. CV 16-\\n4329, 2017 WL 4179752, at *7, 8 (E.D. Pa. Sept. 21, 2017)\\n(quoting Twombly, 550 U.S. at 554). However, Twombly’s\\ndiscussion of alleged misconduct that is “just as much in line\\nwith a wide swath of rational and competitive business\\nstrategy” is specific to antitrust cases. 550 U.S. at 554. In an\\nantitrust case, “a conclusory allegation of agreement at some\\nunidentified point does not supply facts adequate to show\\nillegality,” therefore “when allegations of parallel conduct are\\nset out in order to make a § 1 claim, they must be placed in a\\ncontext that raises a suggestion of a preceding agreement, not\\nmerely parallel conduct that could just as well be independent\\naction.” Id. at 557.\\n One of our sister circuits has declined to extend\\nTwombly’s antitrust pleading rule to breach of fiduciary duty\\nclaims under ERISA because “[r]equiring a plaintiff to rule out\\n\\n\\n\\n\\n 8\\n\\nevery possible lawful explanation for the conduct he\\nchallenges would invert the principle that the complaint is\\nconstrued most favorably to the nonmoving party.” Braden v.\\nWal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009)\\n(citation and internal quotation marks omitted). We agree, and\\ndecline to extend Twombly’s antitrust pleading rule to such\\nclaims. To the extent that the District Court required Sweda to\\nrule out lawful explanations for Penn’s conduct, it erred.\\n We now turn to the task of evaluating Sweda’s\\ncomplaint. We progress in three steps: First, we will note the\\nelements of a claim; second, we will identify allegations that\\nare conclusory and therefore not assumed to be true, and; third,\\naccepting the factual allegations as true, we will view them and\\nreasonable inferences drawn from them in the light most\\nfavorable to Sweda to decide whether “they plausibly give rise\\nto an entitlement to relief.” Connelly v. Lane Constr. Corp.,\\n809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at\\n679).2 Pleadings that establish only a mere possibility of\\nmisconduct do not show entitlement to relief. Fowler, 578 F.3d\\nat 211.\\n In our evaluation of the complaint, we must account for\\nthe fact that Rule 8(a)(2), Twombly, and Iqbal operate with\\ncontextual specificity. Renfro, 671 F.3d at 321 (“[W]e must\\nexamine the context of a claim, including the underlying\\nsubstantive law, in order to assess its plausibility.”). Therefore,\\nERISA’s purpose informs our assessment of Sweda’s\\n\\n 2\\n We have also described this as a two-step analysis, but\\nthe task is the same. See Fowler v. UPMC Shadyside, 578 F.3d\\n203, 210-11 (3d Cir. 2009) (the court (1) separates factual and\\nlegal elements of a claim and takes the well-pleaded factual\\nallegations as true, and (2) determines whether those facts state\\na plausible claim for relief).\\n\\n\\n\\n\\n 9\\n\\npleadings. ERISA’s protective function is the focal point of the\\nstatute. The statute plainly states that ERISA is a response to\\n“the lack of employee information and adequate safeguards\\nconcerning [employee benefit plans’] operation,” and adds that\\nERISA reflects Congress’s desire “that disclosure be made and\\nsafeguards be provided with respect to the establishment,\\noperation, and administration of such plans.” 29 U.S.C.\\n§ 1001(a). This Court has repeatedly acknowledged and\\naffirmed ERISA’s protective function. See e.g. McCann v.\\nUnum Provident, 907 F.3d 130, 143 (3d Cir. 2018); Edmonson\\nv. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 413 (3d Cir. 2013);\\nNat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 81 (3d Cir. 2012).\\nERISA furthers “the national public interest in safeguarding\\nanticipated employee benefits” upon which individuals’\\nlivelihoods depend. Cutaiar v. Marshall, 590 F.2d 523, 529 (3d\\nCir. 1979).\\n ERISA also “represents a careful balancing between\\nensuring fair and prompt enforcement of rights under a plan\\nand the encouragement of the creation of such plans.” Fifth\\nThird Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2470 (2014)\\n(citations and internal quotation marks omitted); In re Unisys\\nSav. Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996) (ERISA\\n“protect[s] and strengthen[s] the rights of employees” and\\n“encourage[s] the development of private retirement plans.”).\\nPlan sponsors and fiduciaries have reliance interests in the\\ncourts’ interpretation of ERISA when establishing plan\\nmanagement practices. ERISA “‘induc[es] employers to offer\\nbenefits by assuring a predictable set of liabilities.’” Renfro,\\n671 F.3d at 321 (quoting Rush Prudential HMO, Inc. v. Moran,\\n536 U.S. 355, 379 (2002)). Both pursuits—participant\\nprotection and plan creation—are important considerations at\\nthe pleadings stage.\\n Two sections of the statute are particularly important to\\n\\n\\n\\n\\n 10\\n\\nthis appeal: the section outlining fiduciary duties, 29 U.S.C.\\n§ 1104, and the section prohibiting certain transactions, id.\\n§ 1106. Under § 1104(a), fiduciaries are held to the prudent\\nman standard of care,3 which is drawn from trust law. Tibble v.\\nEdison Int'l (Tibble III), 135 S. Ct. 1823, 1828 (2015); In re\\nUnisys, 74 F.3d at 434 (“Congress has instructed that section\\n1104 ‘in essence, codifies and makes applicable to …\\nfiduciaries certain principles developed in the evolution of the\\nlaw of trusts.’”) (quoting S. Rep. No. 127, 93 Cong., 2d Sess.\\n(1974)). Section 1104(a) lays the foundation of fiduciary duty,\\nand § 1106(a) “[s]upplement[s] that foundational obligation”\\nby “erect[ing] a categorical bar to transactions between the\\nplan and a ‘party in interest’ deemed likely to injure the plan.”\\nNat’l Sec. Sys., Inc., 700 F.3d at 82.\\n The standards for fiduciary conduct in §§ 1104 and\\n1106 may overlap. When evaluating whether there has been a\\nbreach of fiduciary duties under § 1104, courts may consider\\nthe administrator’s need to “defray[] reasonable expenses of\\nadministering [a] plan.” 29 U.S.C. § 1104(a)(1)(A)(ii). A\\nprohibited transactions claim under § 1106 might also involve\\nexpense-related transactions between a plan and party in\\ninterest. Id. § 1106(a)(1)(C). Despite the overlap, a fiduciary\\nwho breaches the duties under § 1104(a) does not necessarily\\nviolate § 1106(a). Because Sweda alleged that Penn breached\\nits fiduciary duties and caused the Plan to engage in prohibited\\ntransactions, we will first address claims under § 1104(a)(1)\\n\\n 3\\n The duties in § 1104(a) fully apply to all fiduciaries\\nexcept fiduciaries of Employee Stock Ownership Plans\\n(ESOPs). Fifth Third Bancorp, 134 S. Ct. at 2467. Neither\\nESOPs nor the fiduciary duties accompanying them are at issue\\nin this case.\\n\\n\\n\\n\\n 11\\n\\n(Counts I, III, and V), and then address her claims under\\n§ 1106(a)(1) (Counts II, IV, and VI).\\nB. Section 1104(a)(1) claims (Counts I, III, and V)\\n 1. Elements of a claim under § 1104(a)(1)\\n In reviewing the District Court’s dismissal of Sweda’s\\nfiduciary breach claims, our first task is to identify the elements\\nof such a claim. They are: “(1) a plan fiduciary (2) breaches an\\nERISA-imposed duty (3) causing a loss to the plan.” Leckey v.\\nStefano, 501 F.3d 212, 225–26 (3d Cir. 2007), as amended\\n(Dec. 21, 2007). Because the parties do not dispute that Penn\\nis a fiduciary or whether loss was adequately alleged, our focus\\nis whether Sweda adequately alleged that Penn breached its\\nfiduciary duties. A fiduciary must “discharge his duties with\\nrespect to a plan solely in the interest of the participants and\\nbeneficiaries . . . for the exclusive purpose of . . . providing\\nbenefits to participants and their beneficiaries; and . . .\\ndefraying reasonable expenses of administering the plan.” 29\\nU.S.C. § 1104(a)(1), (a)(1)(A). As explained above, fiduciaries\\nare held to the “prudent man” standard of care, which requires\\nfiduciaries to exercise “the care, skill, prudence, and diligence\\nunder the circumstances then prevailing that a prudent man\\nacting in a like capacity and familiar with such matters would\\nuse in the conduct of an enterprise of a like character and with\\nlike aims.” Id. § 1104(a)(1)(B). Fiduciaries are also required to\\ndiversify investments unless it would be imprudent,4 and to\\nadminister the plan according to governing documents and\\ninstruments. Id. § 1104(a)(1)(C), (D). Fiduciaries are\\npersonally liable for losses due to breach. Id. § 1109(a).\\n A fiduciary must prudently select investments, and\\n\\n 4\\n ESOP fiduciaries are exempted from the general duty\\nto diversify. Fifth Third Bancorp, 134 S. Ct. at 2467.\\n\\n\\n\\n\\n 12\\n\\nfailure to “monitor . . . investments and remove imprudent\\nones” may constitute a breach. See Tibble III, 135 S. Ct. at\\n1828-29; see also 29 C.F.R. § 2550.404a-1(b)(1)(i) (fiduciaries\\nmust give “appropriate consideration to those facts and\\ncircumstances that . . . the fiduciary knows or should know are\\nrelevant to the particular investment or investment course of\\naction involved”); see also Fink v. Nat’l Sav. & Trust Co., 772\\nF.2d 951, 957 (D.C. Cir. 1985) (“investigation of the merits of\\na particular investment is at the heart of the prudent person\\nstandard”). Fiduciaries must also understand and monitor plan\\nexpenses. “Expenses, such as management or administrative\\nfees, can sometimes significantly reduce the value of an\\naccount in a defined-contribution plan,” Tibble III, 135 S. Ct.\\nat 1826, by decreasing its immediate value, and by depriving\\nthe participant of the prospective value of funds that would\\nhave continued to grow if not taken out in fees. Recognizing\\nthe substantial impact of a fiduciary’s choice among fee\\noptions, the Ninth Circuit, in Tibble v. Edison Int’l (Tibble II),\\naffirmed the district court’s finding that the plan fiduciary’s\\ninclusion of retail class shares of three funds when institutional\\nclass shares of the same funds were available for 24 to 40 fewer\\nbasis points, was a fiduciary breach. 729 F.3d 1110, 1137-39\\n(9th Cir. 2013), vacated on other grounds, 135 S. Ct. 1823\\n(2015).\\n Cognizant of the impact of fees on Plan value,\\nfiduciaries should be vigilant in “negotiation of the specific\\nformula and methodology” by which fee payments such as\\n“revenue sharing will be credited to the plan and paid back to\\nthe plan or to plan service providers.” DOL Advisory Opinion\\n\\n\\n\\n\\n 13\\n\\n2013-03A, 2013 WL 3546834, at *4.5 Fiduciaries must also\\nconsider a plan’s “power . . . to obtain favorable investment\\nproducts, particularly when those products are substantially\\nidentical—other than their lower cost—to products the trustee\\nhas already selected.” Tibble v. Edison Int’l (Tibble IV), 843\\nF.3d 1187, 1198 (9th Cir. 2016). See Tibble II, 729 F.3d at 1137\\nn.24 (common knowledge that investment minimums are often\\nwaived for large plans). When expenses are paid from plan\\nassets, fiduciaries must ensure that the assets are used “for the\\nexclusive purpose of providing benefits to participants and\\nbeneficiaries and defraying reasonable expenses of\\nadministering the plan.” DOL Advisory Opinion 2001-01A,\\n2001 WL 125092, at *1. See 29 U.S.C. § 1104(a)(1)(A).\\n Bearing these fiduciary duties in mind, a court assesses\\n\\n 5\\n Under ERISA Procedure 76-1 § 10, only the parties\\ndescribed in a request for a DOL advisory opinion may rely on\\nthe opinion, and only to the extent that the problem is fully and\\naccurately described in the request. Advisory Op. Procedure,\\n41 Fed. Reg. 36281-02 (August 27, 1976). The opinions do not\\nhave precedential effect. “Because of the nature and limitations\\nof these rulings,” the Supreme Court declined to “express [a]\\nview as to whether they are or are not entitled to deference” in\\nComm'r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 162 n.3\\n(1993). Such advisory opinions are likely “entitled to respect”\\nto the extent that they have the “power to persuade” under the\\nSupreme Court’s decision in Skidmore v. Swift & Co., 323 U.S.\\n134, 140 (1944). Christensen v. Harris Cty., 529 U.S. 576, 587\\n(2000) (citations omitted). See e.g. Caremark, Inc. v. Goetz,\\n480 F.3d 779, 790 (6th Cir. 2007) (deference to DOL advisory\\nopinion was warranted because of the opinion’s persuasive\\nforce and its consistency with federal and state law and\\nregulations).\\n\\n\\n\\n\\n 14\\n\\na fiduciary’s performance by looking at process rather than\\nresults, “focusing on a fiduciary's conduct in arriving at [a] . . .\\ndecision . . . and asking whether a fiduciary employed the\\nappropriate methods to investigate and determine the merits of\\na particular investment.” In re Unisys, 74 F.3d at 434 (citations\\nomitted). A fiduciary’s process must bear the marks of loyalty,\\nskill, and diligence expected of an expert in the field. It is not\\nenough to avoid misconduct, kickback schemes, and bad-faith\\ndealings. The law expects more than good intentions. “[A] pure\\nheart and an empty head are not enough.” DiFelice v. U.S.\\nAirways, Inc., 497 F.3d 410, 418 (4th Cir. 2007) (quoting\\nDonovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir.\\n1983)). Many allegations concerning fiduciary conduct, such\\nas reasonableness of “compensation for services” are\\n“inherently factual question[s]” for which neither ERISA nor\\nthe Department of Labor give specific guidance. DOL\\nAdvisory Opinion 2013-03A, 2013 WL 3546834, at *4-5.\\n In Renfro, we established the pleading standard for\\nbreach of fiduciary duty under ERISA after examining the\\nreasoning of other Circuits that had addressed the issue in light\\nof Twombly and Iqbal, particularly Hecker v. Deere & Co., 556\\nF.3d 575 (7th Cir. 2009), and Braden v. Wal–Mart Stores, Inc.,\\n588 F.3d 585 (8th Cir. 2009). The Renfro plaintiffs challenged\\nthe mix and range of investment options in their retirement\\nplan, the use of asset-based rather than per-participant fees, and\\nthe alleged imbalance of the fees charged and services\\nrendered. 671 F.3d at 326. The district court granted\\ndefendants’ motion to dismiss, holding that “the plan offered a\\nsufficient mix of investments . . . [such] that no rational trier of\\nfact could find, on the basis of the facts alleged in the operative\\ncomplaint, that the . . . defendants breached an ERISA\\nfiduciary duty by offering [that] particular array of investment\\nvehicles.” Id. at 320 (citations and internal quotation marks\\n\\n\\n\\n\\n 15\\n\\nomitted).\\n We affirmed. Id. at 327-28. We determined that we\\ncould not “infer from what [was] alleged that the [fiduciary’s]\\nprocess was flawed.” Id. at 327 (quoting Braden, 588 F.3d at\\n596). We held that ERISA plans should offer meaningful\\nchoices to their participants, and that:\\n [T]he range of investment options\\n and the characteristics of those\\n included options—including the\\n risk profiles, investment strategies,\\n and associated fees—are highly\\n relevant and readily ascertainable\\n facts against which the plausibility\\n of claims challenging the overall\\n composition of a plan's mix and\\n range of investment options should\\n be measured.\\nId. We explained that a fiduciary breach claim must be\\nexamined against the backdrop of the mix and range of\\navailable investment options. Id. We did not hold, however,\\nthat a meaningful mix and range of investment options\\ninsulates plan fiduciaries from liability for breach of fiduciary\\nduty. Such a standard would allow a fiduciary to avoid liability\\nby stocking a plan with hundreds of options, even if the\\nmajority were overpriced or underperforming. One important\\nreason why we cannot read Renfro to establish such a bright-\\nline rule (that providing a range of investment options satisfies\\na fiduciary’s duty) is that ERISA fiduciaries have a duty to act\\nprudently according to current practices—as the statute puts it,\\nthe “circumstances then prevailing.” 29 U.S.C.\\n§ 1104(a)(1)(B). Practices change over time, and bright line\\nrules would hinder courts’ evaluation of fiduciaries’\\n\\n\\n\\n\\n 16\\n\\nperformance against contemporary industry practices. Bearing\\nthese things in mind, we turn to Sweda’s complaint to\\ndetermine whether she adequately alleged fiduciary breach in\\nCounts I, III, and V.\\n 2. Conclusory allegations of fiduciary breach\\n First, we must eliminate conclusory allegations from the\\ncomplaint. Connelly, 809 F.3d at 787. Sweda included a few\\nconclusory allegations, such as “a prudent process would have\\nproduced a different outcome,” Am. Compl. ¶75, but\\nconclusory statements of that variety are rare in the complaint,\\nand after discarding them, many well-pleaded factual\\nallegations remain.\\n 3. Well-pleaded facts alleging breach of fiduciary duty\\n Sweda alleged that Penn was “responsible for hiring\\nadministrative service providers, such as a recordkeeper, and\\nnegotiating and approving those service providers’\\ncompensation.” Am. Compl. ¶36. She also alleged that Penn\\nwas responsible for the menu of investment options available\\nto participants. Id. In Count I, she alleged that Penn entered a\\n“lock-in” agreement with TIAA-CREF that mandated\\ninclusion of the CREF Stock and Money Market accounts, and\\nrequired the Plan to use TIAA-CREF as a recordkeeper. Am.\\nCompl. ¶86.\\n In Count III, Sweda alleged that Penn paid excessive\\nadministrative fees, failed to solicit bids from service\\nproviders, failed to monitor revenue sharing, failed to leverage\\nthe Plan’s size to obtain lower fees or rebates, and failed to\\ncomprehensively review Plan management. Specifically,\\nSweda alleged that the Plan paid between $4.5 and $5.5 million\\nin annual recordkeeping fees at a time when similar plans paid\\n$700,000 to $750,000 for the same services. Sweda also\\nalleged that percentage-based fees went up as assets grew,\\n\\n\\n\\n\\n 17\\n\\ndespite there being no corresponding increase in recordkeeping\\nservices. Sweda alleged that Penn could have negotiated for a\\ncap on fees or renegotiated the fee structure, but failed to do\\neither. Sweda also alleged that Penn could have assessed the\\nreasonableness of Plan recordkeeping fees by soliciting\\ncompetitive bids, but, unlike prudent fiduciaries, failed to do\\nso. For contrast, Sweda offered examples of similarly situated\\nfiduciaries who acted prudently, such as fiduciaries at Loyola\\nMarymount who hired an independent consultant to request\\nrecordkeeping proposals and consolidated services with a\\nsingle provider. Sweda pointed to similar moves at Pepperdine,\\nPurdue, and CalTech, as well as Caltech’s negotiation for $15\\nmillion in revenue sharing rebates. Sweda alleged that unlike\\nthose organizations, Penn failed to review Plan management,\\nand fell behind other fiduciaries in the industry.\\n In Count V, Sweda alleged that Penn breached its\\nfiduciary duties by: paying unreasonable investment fees,\\nincluding and retaining high-cost investment options with\\nhistorically poor performance compared to available\\nalternatives, and retaining multiple options in the same asset\\nclass and investment style. Specifically, Sweda alleged that\\ndespite the availability of low-cost institutional class shares,\\nPenn selected and retained identically managed but higher cost\\nretail class shares. She included a table comparing options in\\n\\n\\n\\n\\n 18\\n\\nthe Plan with the readily available cheaper alternatives.6 Sweda\\nalso alleged that some options in the line-up had layers of\\nunnecessary fees. Not only did Sweda allege that the options\\nPenn selected and retained were imprudently costly, she also\\nalleged that they were duplicative thereby decreasing the value\\nof actively managed funds, reducing the Plan’s leverage, and\\nconfusing participants. Sweda also alleged that 60% of Plan\\noptions underperformed appropriate benchmarks, and that\\nPenn failed to remove underperformers. Sweda pointed to the\\nCREF Stock Account and TIAA Real Estate Account as\\nexamples of consistent underperformers. She alleged that\\nPenn’s process of selecting and managing options must have\\nbeen flawed if Penn retained expensive underperformers over\\n\\n 6\\n Most of the investment options Sweda criticized in her\\ncomplaint were designated as Tier 3 and Tier 4 options. Sweda\\nalso criticized Tier 2 options such as the TIAA-CREF\\nInternational Equity Index Fund, listed in Sweda’s table\\ncomparing Plan options with their “lower-cost, but otherwise\\nidentical” alternatives. Sweda confirmed that criticized options\\nfell under Tiers 2, 3, and 4 at oral argument. Oral Arg. at 7:33.\\nAt this time we do not address whether Penn may be able to\\nassert a defense to liability under 29 U.S.C. § 1104(c) due to\\nparticipants’ self-directed investing activity. The § 1104(c)\\nsafe harbor defense is an affirmative defense and therefore it is\\ngenerally not part of a court’s consideration of a motion to\\ndismiss under Rule 12(b)(6), except where the defense has\\nbeen anticipated by a plaintiff’s complaint. Hecker, 556 F.3d\\nat 588 (citing In re Unisys, 74 F.3d at 446 for the classification\\nof § 1104(c) as an affirmative defense). Unlike the plaintiffs in\\nHecker who explicitly and “thoroughly anticipated” the safe\\nharbor defense, Sweda did not “put it in play” at the pleadings\\nstage. Id.\\n\\n\\n\\n\\n 19\\n\\nbetter performing, cheaper alternatives. At this stage, her\\nfactual allegations must be taken as true, and every reasonable\\ninference from them must be drawn in her favor. Connelly, 809\\nF.3d at 790.\\n 4. Sweda plausibly stated a claim in Counts III and V\\n At this final step, we employ a holistic approach,\\nconsidering all of Sweda’s well-pleaded factual allegations\\nincluding the range of investment options alongside other\\ngermane factors such as reasonableness of fees, selection and\\nretention of investment options, and practices of similarly\\nsituated fiduciaries, to determine whether her allegations\\nplausibly demonstrate entitlement to relief. See Renfro, 671\\nF.3d at 327; see also Braden, 588 F.3d at 598 (statute’s\\nremedial scheme “counsel[s] careful and holistic evaluation of\\nan ERISA complaint’s factual allegations before concluding\\nthat they do not support a plausible inference that the plaintiff\\nis entitled to relief.”). The complaint should not be “parsed\\npiece by piece to determine whether each allegation, in\\nisolation, is plausible.” Braden, 588 F.3d at 594. See Tatum v.\\nRJR Pension Inv. Comm., 761 F.3d 346, 360 (4th Cir. 2014)\\n(citing DiFelice, 497 F.3d at 420) (courts must look to the\\ntotality of the circumstances to assess the prudence of\\ninvestment decisions).\\n Sweda plausibly alleged breach of fiduciary duty.\\nSweda’s factual allegations are not merely “unadorned, the-\\ndefendant-unlawfully-harmed-me accusation[s].” Iqbal, 556\\nU.S. at 678. As recounted above, they are numerous and\\nspecific factual allegations that Penn did not perform its\\nfiduciary duties with the level of care, skill, prudence, and\\ndiligence to which Plan participants are statutorily entitled\\nunder § 1104(a)(1). Sweda offered specific comparisons\\nbetween returns on Plan investment options and readily\\n\\n\\n\\n\\n 20\\n\\navailable alternatives, as well as practices of similarly situated\\nfiduciaries to show what plan administrators “acting in a like\\ncapacity and familiar with such matters would [do] in the\\nconduct of an enterprise of a like character and with like aims.”\\n29 U.S.C. § 1104(a)(1)(B).7 The allegations plausibly allege\\nthat Penn failed to “defray[] reasonable expenses of\\nadministering the plan” and otherwise failed to “discharge [its]\\nduties” according to the prudent man standard of care. Id.\\n§ 1104(a)(1)(A)(ii) and (B).\\n Other appellate courts have found that similar conduct\\nplausibly indicates breach of fiduciary duty. For instance, in\\nTussey v. ABB, Inc., the Eighth Circuit held that the district\\ncourt did not err in finding fiduciaries breached their duties by\\n“[failing to] (1) calculate the amount the Plan was paying [the\\nrecordkeeper] for recordkeeping through revenue sharing, (2)\\ndetermine whether [the recordkeeper’s] pricing was\\ncompetitive, [or] (3) adequately leverage the Plan's size to\\nreduce fees,” among other things. 746 F.3d 327, 336 (8th Cir.\\n\\n 7\\n Sweda also directly compared fees on options included\\nin the Plan with readily available lower-cost options. The\\ndissent suggests that because the range of fees on options\\nincluded in the Plan is lower than the range of challenged fees\\nin Renfro, Sweda needed to allege a change in market\\ncircumstances since Renfro was decided to state a plausible\\nclaim. In making that suggestion, the dissent misses the object\\nof our inquiry, that is, Penn’s “conduct in arriving at an\\ninvestment decision.” In re Unisys, 74 F.3d at 434 (citations\\nomitted). To that end, the allegations in Sweda’s complaint\\nshow that Penn frequently selected higher cost investments\\nwhen identical lower-cost investments were available. This is\\none of many allegations that, together, plausibly allege that\\nPenn breached its fiduciary duty.\\n\\n\\n\\n\\n 21\\n\\n2014). In Tibble IV, the Ninth Circuit held that whether a\\nfiduciary breached its fiduciary duties by selecting a higher\\ncost share class was an issue requiring development by the\\ndistrict court, and remanded the case for further proceedings.\\n843 F.3d at 1197-98.\\n In dismissing the claims in Counts III and V, the District\\nCourt erred by “ignor[ing] reasonable inferences supported by\\nthe facts alleged,” and by drawing “inferences in [Defendants’]\\nfavor, faulting [Plaintiffs] for failing to plead facts tending to\\ncontradict those inferences.” Braden, 588 F.3d at 595. While\\nSweda may not have directly alleged how Penn mismanaged\\nthe Plan, she provided substantial circumstantial evidence from\\nwhich the District Court could “reasonably infer” that a breach\\nhad occurred. Pension Benefit Guar. Corp. ex rel. St. Vincent\\nCatholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.\\nInc., 712 F.3d 705, 718 (2d Cir. 2013) (citation and internal\\nquotation marks omitted). Based on her allegations, the claims\\nin Counts III and V should not have been dismissed.\\n Penn argues that allowing Sweda to proceed on this\\ncomplaint ignores fiduciary discretion, and also argues that it\\nin fact employed a prudent process in its Plan management.\\nFinally, Penn argues that reversal would overexpose ERISA\\nfiduciaries to liability. According to Penn, ERISA fiduciaries\\nare “afforded a healthy measure of discretion in deciding what\\nis in the plan participants’ interests.” Br. of Appellees at 2. At\\noral argument, Penn emphasized fiduciary discretion, calling it\\nthe “hallmark of fiduciary activity.” Oral Arg. at 25:05. Penn\\nis not incorrect that the exercise of discretionary authority over\\nplan assets is a characteristic of fiduciaries such that courts can\\nidentify fiduciaries by this trait, see Pohl v. Nat'l Benefits\\nConsultants, Inc., 956 F.2d 126, 129 (7th Cir. 1992), nor is\\nPenn incorrect that discretion is an important aspect of\\nfiduciary behavior that the courts should consider in evaluating\\n\\n\\n\\n\\n 22\\n\\nfiduciary performance. ERISA fiduciaries, like trustees, are\\nafforded discretion because “[t]here are no universally\\naccepted and enduring theories of financial markets or\\nprescriptions for investment that can provide clear and specific\\nguidance,” therefore “[v]aried approaches to the prudent\\ninvestment” of assets are permissible. Restatement (Third) of\\nTrusts § 90 (2007), cmt. f.\\n However, while fiduciaries have discretion in plan\\nmanagement, that discretion is bounded by the prudent man\\nstandard. Discretion “does not mean . . . that the legal standard\\nof prudence is without substantive content or that there are no\\nprinciples by which the fiduciary's conduct may be guided and\\njudged,” rather a fiduciary’s conduct at all times “must be\\nreasonably supported in concept and must be implemented\\nwith proper care, skill, and caution.” Id. Fiduciary discretion\\nmust be exercised within the statutory parameters of prudence\\nand loyalty. See DOL Advisory Op. 2006-08A, 2006 WL\\n2990326, at *3. Those parameters impose a fiduciary standard\\nthat is considered “the highest known to the law.” Tatum, 761\\nF.3d at 355–56 (quoting Donovan v. Bierwirth, 680 F.2d 263,\\n272 n.8 (2d Cir. 1982)). See Varity Corp. v. Howe, 516 U.S.\\n489, 497 (1996) (ERISA fiduciary duty may even exceed\\nfiduciary duty as derived from the common law of trusts).\\nTherefore, while we recognize and appreciate fiduciary\\ndiscretion, if there is indeed a “hallmark” of fiduciary activity\\nidentified in the statute, it is prudence. See 29 U.S.C. § 1104(a).\\n As to Penn’s second argument, that it did in fact employ\\na prudent process, this argument goes to the merits and is\\nmisplaced at this early stage. Although Penn may be able to\\ndemonstrate that its process was prudent, we are not permitted\\nto accept Penn’s account of the facts or draw inferences in\\nPenn’s favor at this stage of litigation. Finally, we address\\nPenn’s argument, supported by amici including the American\\n\\n\\n\\n\\n 23\\n\\nCouncil on Education and the Chamber of Commerce of the\\nUnited States of America8, that allowing Sweda’s complaint\\nthrough the 12(b)(6) gate will overexpose plan sponsors and\\nfiduciaries to costly litigation and will discourage them from\\noffering benefit plans at all. Br. of Appellees at 38. Penn\\npredicts that reversal would “give class action lawyers a free\\nticket to discovery and the opportunity to demand extortionate\\nsettlements.” Id.9 Penn’s solution is to interpret Renfro to mean\\nthat if a plan fiduciary provides a “mix and range of investment\\noptions,” plaintiffs cannot plausibly allege breach of fiduciary\\n\\n 8\\n As well as the American Association of State Colleges\\nand Universities (AASCU), Association of American\\nUniversities (AAU), Association of Community College\\nTrustees (ACCT), Association of Public and Land Grant\\nUniversities (APLU), College and University Professional\\nAssociation for Human Resources (CUPA-HR), Council of\\nIndependent Colleges (CIC), National Association of\\nIndependent Colleges and Universities (NAICU), and the\\nAmerican Benefits Council.\\n 9\\n The dissent also expresses concern that reversal will\\noverexpose university sponsors and volunteer fiduciaries to\\nclass action claims designed to yield large settlements and\\nsignificant attorneys’ fees. The dissent fears that universities\\nwill be less likely to offer benefit plans and fiduciaries less\\nlikely to volunteer their services. If that is the case, we should\\nleave it to Congress to address the possibility of a different\\nfiduciary standard that is suitable to the goal of inducing\\nuniversities to offer plans and would-be fiduciaries to\\nvolunteer. As it stands, ERISA fiduciaries are held to one\\nstandard under § 1104 and we cannot adjust our pleadings\\nstandards to accommodate subcategories of sponsors and\\nfiduciaries.\\n\\n\\n\\n\\n 24\\n\\nduty.\\n The Supreme Court addressed a nearly identical\\nconcern in Fifth Third Bancorp. There, the defendants\\n“[sought] relief from what they believe[d were] meritless,\\neconomically burdensome lawsuits.” 134 S. Ct. at 2470. The\\nCourt explained that while Congress, through ERISA, sought\\nto encourage creation of retirement plans, that purpose was not\\nintended to prevent participants with meritorious claims from\\ngaining access to the courts. Id. While Fifth Third concerned\\nan ESOP plan and defendants’ request for a presumption of\\nprudence, its reasoning is apt here. Despite our appreciation of\\nPenn and amici’s fear of frivolous litigation, if we were to\\ninterpret Renfro to bar a complaint as detailed and specific as\\nthe complaint here, we would insulate from liability every\\nfiduciary who, although imprudent, initially selected a “mix\\nand range” of investment options. Neither the statute nor our\\nprecedent justifies such a rule. We will therefore reverse the\\nDistrict Court’s dismissal of the claims in Counts III and V,\\nand remand for further proceedings.10\\n\\n 10\\n The dissent argues that we ought to affirm the District\\nCourt’s dismissal of Count V for Sweda’s want of\\nconstitutional standing under Edmonson v. Lincoln Nat’l Life\\nIns. Co., 725 F.3d 406 (3d Cir. 2013). The dissent argues that\\nbecause Sweda conceded that most of the underperforming\\noptions are in Tiers 3 and 4, the plaintiffs should have included\\ninformation about whether they invested in Tier 3 or Tier 4\\noptions in the complaint. In the dissent’s view, plaintiffs’\\nfailure to include that information constitutes a failure to allege\\nan injury in fact. However, while the complaint does not\\nidentify plaintiffs’ investment options by tier, it does contain\\nfacts that indicate that the named plaintiffs invested in the\\nunderperforming investment options. In a paragraph entitled\\n\\n\\n\\n\\n 25\\n\\n“Standing” in the complaint, Sweda included the following\\ninformation:\\n\\n To the extent the Plaintiffs must\\n also show an individual injury . . .\\n each Plaintiff has suffered such an\\n injury, in at least the following\\n ways . . . The named Plaintiffs’\\n individual accounts in the Plan\\n were further harmed by\\n Defendants’ breaches of fiduciary\\n duties because one or more of the\\n named Plaintiffs during the\\n proposed class period (1) invested\\n in underperforming options\\n including the CREF Stock and\\n TIAA Real Estate accounts[.]\\n\\n App. 36-37. This allegation links the named plaintiffs\\nwith the underperforming investment options and is sufficient\\nto show individual injuries.\\n In light of the dissent’s point on constitutional standing,\\nwe should address the issue as it pertains to participants and\\nbeneficiaries who bring a civil action against fiduciaries under\\n29 U.S.C. § 1132(a)(2). The dissent cites this Court’s decision\\nin Perelman v. Perelman, where we held that participants in a\\ndefined benefit plan could not show actual injury for\\nconstitutional standing for an § 1132(a)(3) claim by pointing\\nto a “diminution of plan assets” because such participants are\\nentitled to a fixed periodic payment rather than part of the asset\\npool. 793 F.3d 368, 374 (3d Cir. 2015). We also noted that\\n“[t]here is no question that representative suits by plan\\n\\n\\n\\n\\n 26\\n\\n We will affirm dismissal of Count I because it is time\\nbarred. Fairview Twp. v. U.S. Envtl. Prot. Agency, 773 F.2d\\n517, 525 n.15 (3d Cir. 1985) (we may affirm on any basis).\\nSweda limited her claim to the initial agreement between the\\nPlan and TIAA-CREF to include the CREF Stock and Money\\nMarket accounts in the Plan, and to use TIAA-CREF for\\nrecordkeeping. This agreement was entered into prior to\\nDecember 31, 2009, and Sweda filed her initial complaint on\\nAugust 10, 2016. Sweda did not present this claim as an\\nongoing breach like the petitioners in Tibble III, 135 S. Ct.\\n1823. Although we must draw every reasonable inference in\\nSweda’s favor, we will not read factual allegations into a\\ncomplaint. Count I is therefore time barred under the six-year\\nstatute of limitations. 29 U.S.C. § 1113(1).11\\n\\n\\nparticipants or beneficiaries against fiduciaries for breach of\\nfiduciary duty are permitted by, and generally brought under,\\nERISA § [1132(a)(2)].” Id. at 376 n.6. This case implicates the\\nlatter part of our observation in Perelman because Sweda\\nbrought this suit under § 1132(a)(2) on behalf of the Plan.\\n 11\\n No action may be commenced under this subchapter\\nwith respect to a fiduciary's breach of any responsibility, duty,\\nor obligation under this part, or with respect to a violation of\\nthis part, after the earlier of--\\n (1) six years after (A) the date of the last action which\\n constituted a part of the breach or violation, or (B) in the\\n case of an omission the latest date on which the fiduciary\\n could have cured the breach or violation, or\\n (2) three years after the earliest date on which the plaintiff\\n had actual knowledge of the breach or violation;\\nexcept that in the case of fraud or concealment, such action\\nmay be commenced not later than six years after the date of\\ndiscovery of such breach or violation. 29 U.S.C. § 1113.\\n\\n\\n\\n\\n 27\\n\\nC. Section 1106(a)(1) claims (Counts II, IV, and VI)\\n 1. Elements of a claim under § 1106(a)(1)\\n Section 1106(a) supplements the fiduciary duties by\\nspecifically prohibiting certain transactions between plans and\\nparties in interest. The elements of a party-in-interest,\\nprohibited transaction claim are: (1) the fiduciary causes (2) a\\nlisted transaction to occur (3) between the plan and a party in\\ninterest. 29 U.S.C. § 1106(a)(1). ERISA defines “party in\\ninterest” as “a person providing services to such plan.” 29\\nU.S.C. § 1002(14)(B). Sweda argues that TIAA-CREF and\\nVanguard are parties in interest according to the plain language\\nof § 1002(14)(B). She also points to a Department of Labor\\nadvisory opinion holding that a life insurance company that\\nprovided recordkeeping and related services to a retirement\\nplan would be a party in interest under the statute. See DOL\\nAdvisory Opinion 2013-03A, 2013 WL 3546834. Importantly,\\nan investment company does not become a party in interest\\nmerely because a plan invests in securities issued by the\\ninvestment company. 29 U.S.C. § 1002(21)(B).\\n Fiduciaries are prohibited from causing a plan to engage\\nin the transactions listed at § 1106(a)(1). Those transactions\\nare:\\n (A) sale or exchange, or leasing, of\\n any property between the plan and\\n a party in interest; (B) lending of\\n money or other extension of credit\\n between the plan and a party in\\n interest; (C) furnishing of goods,\\n services, or facilities between the\\n plan and a party in interest; (D)\\n transfer to, or use by or for the\\n benefit of a party in interest, of any\\n\\n\\n\\n\\n 28\\n\\n assets of the plan; or (E)\\n acquisition, on behalf of the plan,\\n of any employer security or\\n employer real property in violation\\n of section 1107(a) of this title.\\nBetween the definition of service providers as parties in\\ninterest, id. § 1002(14)(B), and this exhaustive list of\\nprohibited transactions, § 1106(a)(1) could be read to have an\\nextremely broad application. Some courts have embraced that\\nbreadth and interpreted § 1106(a)(1) to prohibit almost any\\ntransaction with a party in interest. The Seventh Circuit, for\\nexample, has held that § 1106(a)(1) creates a per se rule against\\nparty in interest transactions, so that plaintiffs who allege such\\ntransactions may do so without even pleading\\nunreasonableness of fees. Allen v. GreatBanc Trust Co., 835\\nF.3d 670, 676 (7th Cir. 2016). In Allen, the Seventh Circuit\\nruled that the exemptions from prohibited transactions, under\\n29 U.S.C. § 1108, are affirmative defenses, and that\\n“plaintiff[s] ha[ve] no duty to negate any or all of them” in a\\ncomplaint. Id. It also noted that five other circuits (the Second,\\nFourth, Fifth, Eighth, and Ninth) have ruled similarly. Id. See\\nBraden, 588 F.3d at 600-01 (plaintiff did not have to plead\\nfacts “raising a plausible inference that the payments were\\nunreasonable” because exemption in § 1108 is a defense raised\\nby defendant). Responding to concerns about a flood of\\nprohibited transaction claims, the Seventh Circuit reasoned\\nthat Rule 11 sanctions and reasonable risk aversion would\\nprevent the floodgates from opening. Allen, 835 F.3d at 677.\\n We decline to read § 1106(a)(1) as the Seventh Circuit\\ndoes because it is improbable that § 1106(a)(1), which was\\ndesigned to prevent “transactions deemed likely to injure the .\\n. . plan” and “self-dealing,” Nat’l Sec. Sys., Inc., 700 F.3d at 92\\n(citation and internal quotation marks omitted), would prohibit\\n\\n\\n\\n\\n 29\\n\\nubiquitous service transactions and require a fiduciary to plead\\nreasonableness as an affirmative defense under § 1108 to avoid\\nsuit. Not even Sweda advocates for such a broad reading of\\n§ 1106(a)(1), conceding in her complaint that “paying for\\nrecordkeeping with asset-based revenue sharing is not [a] per\\nse violation of ERISA.” Am. Compl. ¶101. One of the reasons\\nwe do not find Allen persuasive is that the transactions the\\nSeventh Circuit scrutinized in Allen were a far cry from the\\nordinary service arrangements at issue here. In Allen, an ESOP\\nfiduciary bought the employer’s stock using a loan financed by\\nthe principal shareholders of the company. The value of the\\nstock then fell so drastically that “[t]he Plan’s participants, all\\nemployees of [the company], wound up being on the hook for\\ninterest payments on the loan.” Allen, 835 F.3d at 673. A\\ntransaction of that variety is far removed from ordinary\\nrecordkeeping arrangements. Therefore, Allen does not\\nprovide sufficient justification to recognize a per se rule that\\nevery furnishing of goods or services between a plan and party\\nin interest is a prohibited transaction under § 1106(a)(1).\\n Our ruling today does not conflict with our earlier\\ndecisions holding that transactions between a plan and plan\\nfiduciaries are per se prohibited under § 1106(b). See Cutaiar,\\n590 F.2d at 528; see also Nat’l Sec. Sys., Inc., 700 F.3d at 94.\\nIn Cutaiar, we held that “[w]hen identical trustees of two\\nemployee benefit plans whose participants and beneficiaries\\nare not identical effect a loan between the plans without a\\n[§ 1108] exemption, a per se violation of ERISA exists” under\\n§ 1106(b)(2). 590 F.2d at 529. In National Security Systems,\\nwe held that a transaction between a plan and fiduciary that is\\ntainted by self-dealing is a per se violation of § 1106(b)(3)\\n“regardless of the reasonableness of compensation.” 700 F.3d\\nat 93. Those cases do not control here because § 1106(a) and\\n(b) have distinct purposes: “[s]ubsection (a) erects a\\n\\n\\n\\n\\n 30\\n\\ncategorical bar to transactions between the plan and a ‘party in\\ninterest’ deemed likely to injure the plan,” and “[s]ubsection\\n(b) prohibits plan fiduciaries from entering into transactions\\nwith the plan tainted by conflict-of-interest and self-dealing\\nconcerns.” Id. at 82. The protective function of ERISA is at its\\nheight in the latter scenario when there is a risk of fiduciary\\nself-dealing. The instances where participants might benefit\\nfrom a transaction between a plan and a fiduciary are so rare\\nthat they can be prohibited outright.\\n Reading § 1106(a)(1) as a per se rule barring all\\ntransactions between a plan and party in interest would miss\\nthe balance that Congress struck in ERISA, because it would\\nexpose fiduciaries to liability for every transaction whereby\\nservices are rendered to the plan. See Renfro, 671 F.3d at 321\\n(“In enacting ERISA, Congress ‘resolved innumerable\\ndisputes between powerful competing interests—not all in\\nfavor of potential plaintiffs.’” (quoting Mertens v. Hewitt\\nAssocs., 508 U.S. 248, 262 (1993))). Additionally, if we\\ninterpreted § 1106(a)(1) to prohibit every transaction for\\nservices to a plan, we would have to ignore other parts of the\\nstatute. For instance, ERISA specifically acknowledges that\\ncertain services are necessary to administer plans. See 29\\nU.S.C. § 1104(a)(1)(A)(ii). Interpreting § 1106(a)(1) to\\nprohibit necessary services would be absurd, and when one\\ninterpretation of a statute leads to an absurd result, we may\\nconsider an alternative interpretation that avoids the absurdity.\\nThorpe v. Borough of Jim Thorpe, 770 F.3d 255, 263 (3d Cir.\\n2014) (quoting First Merchants Acceptance Corp. v. J.C.\\nBradford & Co., 198 F.3d 394, 402 (3d Cir. 1999)). Therefore\\nwe decline to interpret § 1106(a)(1) as prohibiting per se the\\n“furnishing of goods [or] services,” 29 U.S.C. § 1106(a)(1)(C),\\nby all “person[s] providing services to [the] plan,” id.\\n\\n\\n\\n\\n 31\\n\\n§ 1002(14)(B).12\\n The Supreme Court similarly avoided absurdity in its\\ninterpretation of § 1106(a)(1) in Lockheed Corp. (addressing\\nwhether the administrator of a plan could condition payment\\non performance by participants). The Court held that payments\\nof benefits to a participant, which under a hyper-literal reading\\nof the statute could be understood as “a transfer to, or use by\\nor for the benefit of a party in interest, of any assets of the\\nplan,” 29 U.S.C. § 1106(a)(1)(D), was not a prohibited\\ntransaction. Lockheed Corp., 517 U.S. at 892-93. The Supreme\\nCourt rejected the hyper-literal reading because it would have\\nbeen absurd and illogical in the context of the statute. Id. The\\nCourt went through the subsections of § 1106(a)(1), listing the\\ndifferent statutorily prohibited transactions, and explained that\\nthey follow a common thread: they are all “commercial\\nbargains that present a special risk of plan underfunding\\nbecause they are struck with plan insiders, presumably not at\\narm’s length.” Id. at 893. The Court distinguished payment of\\nplan benefits because they “cannot reasonably be said to share\\nthat characteristic.” Id.\\n We have interpreted § 1106(a)(1)(D) similarly, holding\\nthat a violation occurs when: (1) a fiduciary, (2) causes a plan\\nto engage in a transaction, (3) that uses plan assets, (4) for the\\n\\n 12\\n Moreover, § 1106(a) was not designed to prevent\\nnegotiation between unaffiliated parties. See Lockheed Corp.\\nv. Spink, 517 U.S. 882, 893 (1996). Thus, if a service provider\\nhas no prior relationship with a plan before entering a service\\nagreement, the service provider is not a party in interest at the\\ntime of the agreement. As explained herein, it only becomes a\\nparty in interest after the initial transaction occurs, and\\nsubsequent transactions are not prohibited absent self-dealing\\nor disloyal conduct.\\n\\n\\n\\n\\n 32\\n\\nbenefit of a party in interest, and (5) “the fiduciary ‘knows or\\nshould know’ that elements three and four are satisfied.” Reich\\nv. Compton, 57 F.3d 270, 278 (3d Cir. 1995). In Reich, we held\\nthat specific intent is required because of the plain meaning of\\nthe statutory phrase “for the benefit,” and also because if\\n§ 1106(a)(1)(D) did not require “subjective intent to benefit a\\nparty in interest, [it] would produce unreasonable\\nconsequences that we feel confident Congress could not have\\nwanted.” Id. at 279.\\n The Supreme Court’s identification of the common\\nthread in § 1106(a)(1), a special risk to the plan from a\\ntransaction presumably not at arm’s length—and its\\ndetermination that transactions that do not share that common\\nthread are permissible—as well as our interpretation of\\n§ 1106(a)(1)(D), represent a more harmonious way to interpret\\nthe prohibited transactions listed in § 1106(a)(1) in the context\\nof the statute as a whole. The element of intent to benefit a\\nparty in interest effects the purpose of § 1106(a)(1), which is\\nto rout out transactions that benefit such parties at the expense\\nof participants. Section 1106(a)(1) is not meant to impede\\nnecessary service transactions, but rather transactions that\\npresent legitimate risks to participants and beneficiaries such\\nas “securities purchases or sales by a plan to manipulate the\\nprice of the security to the advantage of a party-in-interest.”\\nLeigh v. Engle, 727 F.2d 113, 127 (7th Cir. 1984) (quoting H.R.\\nConf. Rep. No. 1280, 93rd Cong., 2d Sess. 308) (alteration\\nomitted). We therefore hold that absent factual allegations that\\nsupport an element of intent to benefit a party in interest, a\\nplaintiff does not plausibly allege that a “transaction that\\nconstitutes a direct or indirect . . . furnishing of goods, services,\\nor facilities between the plan and a party in interest” prohibited\\nby § 1106(a)(1)(C) has occurred. Requiring plaintiffs to allege\\nfacts supporting this element avoids absurdity in interpreting\\n\\n\\n\\n\\n 33\\n\\nthe statute.\\n 2. Conclusory and well-pleaded factual allegations of\\n prohibited transactions\\n The factual allegations that Sweda included in her\\ncomplaint to support her claims for prohibited transactions\\noverlap with the allegations supporting her fiduciary breach\\nclaims. Besides the allegations recounted above, Sweda\\nalleged that revenue sharing was “kicked back” to TIAA-\\nCREF for recordkeeping associated with TIAA-CREF options.\\nAm. Compl. ¶109. She alleged that Penn “allowed TIAA’s\\nfinancial interest to dictate the Plan’s investment selections and\\nrecordkeeping arrangement.” Am. Compl. ¶87. She also\\nalleged that Penn failed to act in the exclusive interest of\\nparticipants, instead “serv[ing] TIAA-CREF’s and Vanguard’s\\nfinancial interests” with decisions such as “allowing TIAA-\\nCREF and Vanguard to put their proprietary investments in the\\nPlan without scrutinizing those providers’ financial interest.”\\nAm. Compl. ¶¶112, 200. These general allegations about\\nkickbacks and prioritizing TIAA-CREF and Vanguard’s\\nfinancial interests over the participant and beneficiaries’\\nfinancial interests are largely conclusory, but we also consider\\nwell-pleaded factual allegations summarized at § III.B.3 that\\nare relevant to Sweda’s prohibited transaction claims.\\n 3. Sweda failed to plausibly state a claim under Counts\\n II, IV, and VI\\n Looking at the totality of the allegations in the\\ncomplaint, taken as true, Connelly, 809 F.3d at 787, Sweda\\nfailed to state a plausible claim for prohibited transactions in\\nCounts II, IV, and VI.\\n a. Count II\\n In Count II, Sweda alleged that a prohibited transaction\\n\\n\\n\\n\\n 34\\n\\noccurred when Penn allowed TIAA-CREF to require inclusion\\nof CREF Stock and Money Market accounts among the Plan’s\\ninvestment options and agreed to TIAA-CREF recordkeeping\\nservices, pursuant to a “lock-in” agreement. Am. Compl. ¶193.\\nTwo of Sweda’s prohibited transaction claims emanate from\\nthis agreement: (1) that a prohibited transaction occurred at the\\ntime of the initial agreement, and (2) that a prohibited\\ntransaction occurred every time fees were later paid pursuant\\nto the agreement. As to the initial agreement, Sweda did not\\nsufficiently allege that TIAA-CREF was a party in interest at\\nthat time: she included no allegation that TIAA-CREF was\\n“providing services to [the] plan,” 29 U.S.C. § 1002(14)(B).\\nBecause Sweda failed to allege that TIAA-CREF was a party\\nin interest at the time of the “lock-in,” that element is factually\\nunsupported, and she failed to state a claim for the first alleged\\nprohibited transaction in Count II. Sweda’s second claim in\\nCount II that prohibited transactions occurred every time\\nproperty was exchanged or services were rendered pursuant to\\nthe “lock-in” agreement is so closely related to Count IV\\n(payment of recordkeeping fees) that we will address these\\nclaims together.\\n b. Counts II and IV\\n In Counts II and IV, Sweda alleged that Penn caused the\\nPlan to enter prohibited transactions when it caused the Plan to\\npay administrative fees to TIAA-CREF and Vanguard. Sweda\\nplausibly alleged that TIAA-CREF and Vanguard were parties\\nin interest under § 1002(14)(B) because they provided services\\nto the plan at the time fees were paid, and Penn’s own Plan\\nmaterials identify TIAA-CREF and Vanguard as parties in\\ninterest. At the pleadings stage, we must assume that this well-\\npleaded fact is true. Next we look to whether Penn caused the\\nPlan to enter a prohibited transaction with TIAA-CREF or\\nVanguard for administrative fees. Sweda alleged that the\\n\\n\\n\\n\\n 35\\n\\nadministrative fee payments constituted prohibited\\ntransactions under § 1106(a)(1) in three ways: (1) they were\\nprohibited transfers of property under § 1106(a)(1)(A), (2) they\\nwere transfers of assets under subsection (D), and (3) they\\nconstituted furnishing of services under subsection (C). We\\nfirst address whether Sweda plausibly alleged that\\nadministrative fee payment by revenue sharing constituted a\\ntransfer of property under (A) or Plan assets under (D).\\n Sweda alleged that administrative fees were paid by\\nrevenue sharing. Am. Compl. ¶¶ 46, 110 (Vanguard is\\n“compensated for recordkeeping services based on internal\\nrevenue sharing it receives from the Vanguard Investor share\\nclass mutual funds.”). She also alleged that investment fees\\nwere drawn from mutual fund assets. Am. Compl. ¶44.\\n(“Mutual fund fees are usually expressed as a percentage of\\nassets under management . . . [t]he fees deducted from a mutual\\nfund’s assets . . .”). Mutual fund assets are distinct from Plan\\nassets, because, under the statute, assets of “a plan which\\ninvests in any security issued by an investment company” do\\nnot “include any assets of such investment company.” 29\\nU.S.C. § 1101(b)(1). See Hecker, 556 F.3d at 584 (With\\nsupport from the Department of Labor, defendants\\ndemonstrated that revenue sharing fees did not impinge plan\\nassets because they were drawn from the assets of mutual\\nfunds). Therefore, Sweda did not plausibly allege that revenue\\nsharing involved a transfer of Plan property or assets under\\n§ 1106(a)(1)(A) or (D), and furthermore, Sweda did not\\nplausibly allege that Penn had subjective intent to benefit a\\nTIAA-CREF or Vanguard by a use or transfer of Plan assets,\\nwhich, under our precedent, is required to state a claim under\\n§ 1106(a)(1)(D). Reich, 57 F.3d at 279.\\n Finally, we must address whether a prohibited\\ntransaction occurred under § 1106(a)(1)(C), the prohibition of\\n\\n\\n\\n\\n 36\\n\\n“furnishing of goods, services, or facilities between the plan\\nand a party in interest.” As we explained above, it is possible\\nto read subsection (C) to create a per se prohibited transaction\\nrule forbidding service arrangements between a plan and a\\nparty rendering services to the plan. However, because reading\\n§ 1106(a)(1)(C) to that end would be absurd, Sweda must plead\\nan element of intent to benefit the party in interest. After\\nstriking conclusory allegations, such as “Defendants served\\nTIAA-CREF’s and Vanguard’s financial interests” (Am.\\nCompl. ¶112) from the complaint, we do not find that Sweda\\nalleged facts showing that Penn intended to benefit TIAA-\\nCREF or Vanguard. We will affirm the dismissal of Sweda’s\\nclaims for prohibited transactions under Counts II and IV.\\n c. Count VI\\n At Count VI, Sweda alleged that Penn caused the Plan\\nto engage in prohibited transactions when it caused the Plan to\\npay investment fees to TIAA-CREF and Vanguard. For similar\\nreasons that Sweda did not plausibly allege prohibited\\ntransactions in Counts II and IV, she also failed to plausibly\\nallege prohibited transactions in Count VI. First, Sweda did not\\nplausibly allege that payment of investment fees constituted a\\nprohibited transaction under § 1106(a)(1)(A), because Sweda\\nalleged that investment fees were drawn from mutual fund\\nassets, not Plan assets. Second, for the same reason, investment\\nfees were not plausibly alleged to be a transfer of assets of the\\nPlan under § 1106(a)(1)(D). Third, Sweda did not allege that\\nPenn intended to benefit TIAA-CREF or Vanguard under\\n§ 1106(a)(1)(D), as required by our precedent. Reich, 57 F.3d\\nat 279. Finally, as we explained above in our discussion of\\nCounts II and IV, in order to state a claim for prohibited\\ntransactions under § 1106(a)(1)(C), “furnishing goods,\\nservices, or facilities between the plan and a party in interest,”\\na plaintiff must allege intent to benefit a party in interest.\\n\\n\\n\\n\\n 37\\n\\nSweda failed to do so. Therefore, we will affirm the dismissal\\nof the claim for prohibited transactions under Count VI.\\n IV.\\n Sweda plausibly alleged that Penn failed to conform to\\nthe high standard required of plan fiduciaries under 29 U.S.C.\\n§ 1104(a)(1). However, she did not plausibly allege that Penn\\ncaused the Plan to enter prohibited transactions under\\n§ 1106(a)(1). We therefore will REVERSE the portion of the\\nDistrict Court’s order granting the Appellees’ motion to\\ndismiss Counts III and V and remand for further proceedings.\\nWe will AFFIRM the District Court’s order dismissing Counts\\nI, II, IV, VI, and VII.\\n\\n\\n\\n\\n 38\\n\\n Sweda v. University of Pennsylvania,\\n No. 17-3244\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4393425/\", \"author_raw\": \"FISHER, Circuit Judge.\"}, {\"author\": \"ROTH, Senior Judge, concurring\", \"type\": \"concurrence\", \"text\": \"ROTH, Senior Judge, concurring in part and dissenting in\\npart:\\n\\n Like many large employers, the University of\\nPennsylvania maintains a retirement plan for its employees.\\nBetween 2009 and 2014, the plan’s assets increased in value\\nby $1.6 billion, a 73% return on investment. Despite this\\nincrease, plaintiffs have filed a putative class action, claiming\\nthat the plan’s fiduciaries have imprudently managed it and\\nseeking tens of millions of dollars of damages. Having\\nconvinced this Court to reverse in part the District Court’s\\ndismissal of the action, the plaintiffs will continue to pursue\\ntheir remaining claims, which will be litigated extensively, at\\nlarge cost to the university. As a result, the university is in an\\nunenviable position, in which it has every incentive to settle\\nquickly to avoid (1) expensive discovery and further motion\\npractice, (2) potential individual liability for named\\nfiduciaries,1 and (3) the prospect of damages calculations, after\\nlengthy litigation, with interest-inflated liability totals.\\n\\n This pressure to settle increases with the size of the plan,\\nregardless of the merits of the case. Alleged mismanagement\\nof a $400,000 plan will expose fiduciaries to less liability than\\nmismanagement of a $4 billion plan. Thus, notwithstanding\\nthe strength of the claims, a plaintiff’s attorney, seeking a large\\nfee, will target a plan that holds abundant assets. I am\\n\\n1\\n Sec’y, U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87, 91–92 (3d\\nCir. 2017).\\n\\nconcerned that this is the case both here and in numerous other\\nlawsuits that have targeted large corporations and universities\\nthat administer some of the largest retirement plans in the\\ncountry.2\\n\\n This strategy has substantial consequences for\\nfiduciaries of these plans, particularly at universities. While\\nthe fiduciaries for large corporations may have experience in\\ndealing with potential liabilities, fiduciaries at universities are\\noften staff members who volunteer to serve in these roles.3\\nEven though indemnification agreements exist for these\\nindividual members, as long as they are party to the suit they\\nwill be required to disclose this litigation in personal financial\\ntransactions.4 Moreover, universities, which unlike large\\n\\n\\n2\\n For a representative sample of cases plaintiffs’ counsel has\\nbrought against corporations and universities respectively, see\\ninfra notes 26–27.\\n3\\n While this suit does not name the members of the Investment\\nCommittee as defendants, and the record does not specify the\\nmembers of the Investment Committee or their roles within the\\nuniversity, other suits name staff members as individual\\ndefendants. E.g., Tracey v. Mass. Inst. Of Tech., No. 16-11620,\\n2017 WL 4453541 (Aug. 31, 2017), adopted in part and\\nrejected in part, 2017 WL 4478239 (Oct. 4, 2017).\\n4\\n See Cunningham v. Cornell Univ., No. 16-cv-6525, 2018 WL\\n1088019, at *1 (Jan. 19, 2018) (“Plaintiffs shall address why\\nthey need to name 29 additional individuals as defendants other\\nthan (a) they think they can; and (b) the assertion of multi-\\nmillion dollar claims against these individuals who served on\\na committee at their employer’s request has the tremendous\\npower to harass these individuals because they will be required\\n\\n\\n\\n\\n 2\\n\\ncorporations are not typically in the business of profitmaking,\\nmust keep in mind, when determining how best to proceed in\\nlitigation, that the university will be responsible for any\\ndamages award. This reality demands that cases such as this\\none be carefully scrutinized in order not to permit implausible\\nallegations to result in a large settlement, under which a\\nsubstantial portion of the funds that are to be reimbursed to\\nretirement plans are instead diverted to attorneys’ fees.\\n\\n Ultimately, this case presents a question virtually\\nidentical to the one addressed by this Court seven years ago, in\\nRenfro v. Unisys Corp.5: Does an ERISA plan fiduciary acting\\nin good faith, under the prudent person standard, have a duty\\nto do more than provide a wide, reasonable, and low-cost\\nvariety of investment options for individual plan beneficiaries\\nwho want to have control over their own investment portfolio?\\nPlaintiffs contend that because the pleadings have identified\\nspecific problematic funds in the mix and range offered by\\ndefendants, the answer should be yes. The majority agrees,\\nholding that the administrators of a pension plan must ensure\\nthat sophisticated investors receive the best version of each\\nplan available. This departs from the core principles in Renfro,\\nset out above, which the District Court followed faithfully. For\\nthese reasons, I would affirm in full the District Court’s\\ndismissal of the amended complaint.\\n\\n\\n\\n\\nto list the lawsuit on every auto, mortgage or student financial\\naid application they file.”).\\n5\\n 671 F.3d 314, 327–28 (3d Cir. 2011).\\n\\n\\n\\n\\n 3\\n\\n I\\n\\n The Plan, as explained by the District Court, is a\\ndefined-contribution plan that offers its beneficiaries four\\nlevels of involvement in their investments. The first tier is a\\n“do-it-for-me” tier, where investors have their choice between\\na TIAA target fund and a Vanguard target fund, which funds\\nautomatically adjust their investment strategy with no input\\nfrom the beneficiary, based on an expected retirement date.\\nTier 2 is a “help-me-do-it” tier, which allows a beneficiary to\\nselect from a group of eight options and weigh them as\\npreferred. The third tier is a “mix-my-own” tier, which\\nprovides a few options for each of nine types of funds. And\\nfinally, Tier 4 is a “self-directed” tier, which provides access\\nto the full panoply of 78 funds offered by defendants.6\\n\\n Of these 78 investment options, virtually all are mutual\\nfunds. Over the course of the class period, the proportion of\\nretail-class mutual funds, as opposed to cheaper institutional-\\nclass mutual funds, has varied. Appellants have specifically\\nchallenged 58 of these retail-class funds as having had cheaper\\nbut otherwise identical institutional-class analogues at some\\npoint during the class period (Count V). Defendants note in\\nthis connection that dozens of funds have been switched to\\ninstitutional classes over time. Plaintiffs also challenge the\\nmethod in which fees are calculated (Count III), stating that an\\nasset-based calculation has overcompensated the record\\nkeepers and that a failure to negotiate rebates constituted a\\nbreach of fiduciary duty.\\n\\n\\n6\\n Before October 2012, forty additional funds were included in\\nthis tier, for a total of 118.\\n\\n\\n\\n\\n 4\\n\\n At argument, when asked about the four separate tiers\\nof beneficiary involvement, plaintiffs stated that the funds\\nbeing challenged were largely related to Tiers 3 and 4, and in\\na follow-up response, specifically excluded Tier 1 from the\\nscope of the complaint.\\n\\n II\\n\\n It is well established that ERISA was intended to be a\\n“comprehensive and reticulated” statute7 enacted after “a\\ndecade of congressional study of the Nation’s private\\nemployee benefit system.”8 ERISA “resolved innumerable\\ndisputes between powerful competing interests—a balance\\nbetween encouraging the creation of plans and ensuring\\nenforcement of rights under a plan.”9 Congress intended to\\ncreate a system “that is [not] so complex that administrative\\ncosts, or litigation expenses, unduly discourage employers\\nfrom offering [ERISA] plans in the first place.”10 Instead,\\nERISA’s purpose is, in part, to “assur[e] a predictable set of\\n\\n7\\n Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,\\n209 (2002).\\n8\\n Santomenno ex rel. John Hancock Tr. v. John Hancock Life\\nIns. Co., 768 F.3d 284, 291 (3d Cir. 2014) (quoting Mertens v.\\nHewitt Assocs., 508 U.S. 248, 251 (1993)); accord Renfro v.\\nUnisys Corp., 671 F.3d 314, 321 (3d Cir. 2011).\\n9\\n Renfro, 671 F.3d at 321 (3d Cir. 2011) (quoting Mertens, 508\\nU.S. at 262).\\n10\\n Conkright v. Frommert, 559 U.S. 506, 517 (2010) (quoting\\nVarity Corp. v. Howe, 516 U.S. 489, 497 (1996)); see also Fifth\\nThird Bancorp. v. Dudenhoffer, 134 S. Ct. 2459, 2470 (2014)\\n(“Congress sought to encourage the creation of [employee\\nstock ownership plans].”).\\n\\n\\n\\n\\n 5\\n\\nliabilities, under uniform standards of primary conduct and a\\nuniform regime of ultimate remedial orders and awards when\\na violation has occurred.”11\\n\\n Plaintiffs’ counsel, “one of the few firms handling\\nERISA class actions such as this,”12 have brought numerous\\nERISA suits across the country. While these cases were at first\\nlimited to corporate retirement plans,13 they have expanded to\\ninclude several suits against university retirement plans.14\\nThese cases typically are not litigated to conclusion, either\\n\\n\\n11\\n Id. (quoting Rush Prudential HMO, Inc. v. Moran, 536 U.S.\\n355, 379 (2002)).\\n12\\n Beesley v. Int’l Paper Co., No. 06-CV-703, 2014 WL\\n375432, at *3 (Jan. 31, 2014).\\n13\\n E.g., Renfro, 671 F.3d at 314; accord Tibble v. Edison Int’l,\\n831 F.3d 1262 (9th Cir. 2016); Tussey v. ABB, Inc., 746 F.3d\\n327 (4th Cir. 2014); Hecker v. Deere & Co., 556 F.3d 575 (7th\\nCir. 2009).\\n14\\n E.g., Cunningham v. Cornell Univ., No. 16-CV-6525, 2019\\nWL 275827 (Jan. 22, 2019) (considering class certification\\nmotion); Divane v. Nw. Univ., No. 16-CV-8157, 2018 WL\\n1942649 (Apr. 25, 2018) (considering defendants’ motion to\\nstrike jury demand), appeal filed (July 18, 2018); Clark v. Duke\\nUniv., No. 16-CV-1044, 2018 WL 1801946 (Apr. 13, 2018)\\n(considering class certification motion); Tracey v. Mass. Inst.\\nof Tech., No. 16-11620, 2017 WL 4478239 (Oct. 4, 2017)\\n(considering motion to dismiss); Cates v. Trs. Of Columbia\\nUniv., No. 16-CV-6524, 2017 WL 3724296 (Aug. 28, 2017)\\n(considering motion to dismiss); Sacerdote v. N.Y. Univ., No.\\n16-cv-6284, 2017 WL 3701482 (Aug. 25, 2017) (considering\\nmotion to dismiss).\\n\\n\\n\\n\\n 6\\n\\nterminating through settlement or a judicial finding against the\\nplaintiffs.\\n\\n Given that these cases are brought as putative class\\nactions, counsel is able to petition the court for fees after a\\nsuccessful settlement. In cases of successful settlements,\\ncounsel, upon petition, are often awarded one third of the\\nsettlement amount, plus expenses, from the settlement fund.15\\nWhile benefits to the plan may result from the settlement, they\\nare substantially diluted by the fees’ calculation, even before\\nconsidering the litigation costs that the universities shoulder\\nthrough the motion to dismiss stage. Indeed, while there is no\\ncomprehensive listing of “jumbo plans” maintained in this\\ncountry, this pattern of bringing class actions against large\\nfunds seems to have sustained itself and could continue as long\\nas more plans can be identified.\\n\\n Such a result would be the opposite of “assuring a\\npredictable set of liabilities, under uniform standards of\\nprimary conduct.”16 Indeed, it would not only discourage the\\noffering of these plans, but it would also discourage\\n\\n\\n15\\n See, e.g., Krueger v. Ameriprise Fin., No. 11-CV-2781, 2015\\nWL 4246879, at *4 (July 13, 2015) (approving 33 1/3% fees\\nand additional costs totaling 36% of the common fund); Nolte\\nv. Cigna Corp., No. 07-CV-2046, 2013 WL 12242015, at *4\\n(Oct. 15, 2013) (approving 33 1/3% fees and additional costs\\ntotaling 36% of the common fund); George v. Kraft Foods\\nGlobal, Inc., No. 08-CV-3799, 2012 WL 13089487, at *4\\n(June 26, 2012) (approving 33 1/3% fees and additional costs\\ntotaling 49% of the common fund);\\n16\\n Conkright, 559 U.S. at 517.\\n\\n\\n\\n\\n 7\\n\\n“individuals from serving as fiduciaries.”17 Therefore, in\\nenforcing the pleading standards under Twombly and Iqbal,\\ncourts must take great care to allow only plausible, rather than\\npossible, claims to withstand a motion to dismiss.18 While the\\nmajority takes great care to lay out the pleading standards that\\ngovern this dispute, for the reasons stated below, I disagree that\\nthose standards have been met.\\n\\n The majority cites Fifth Third Bancorp v.\\nDudenhoeffer19 to support discarding any concern of\\nencouraging attorney-driven litigation, despite its\\n“appreciation of Penn and amici’s fear of frivolous\\nlitigation.”20 But Fifth Third concerned an employee stock\\nownership plan, under which employees invested primarily in\\nthe stock of their employer, a plan that the majority points out\\nis subject to distinct duties under 29 U.S.C. § 1104(a).21 The\\ndefendants in that case were arguing for a special presumption\\nthat investments in the employer’s stock would be prudent\\nunless the employer was in dire financial straits.22 No such\\n\\n\\n17\\n Id.\\n18\\n To the extent that amici, including the American Council on\\nEducation, address this point, I find it persuasive. More\\nimportantly, I also believe that this consideration is consistent\\nwith the holding in Renfro. The majority’s primary response\\nto this argument of amici is that defendants’ alternative would\\nforeclose ERISA liability for any plan with a mix and range of\\noptions. I will address this below. See infra Part IV.\\n19\\n 134 S. Ct. 2459 (2014).\\n20\\n Maj. Op. at 25.\\n21\\n Fifth Third, 134 S. Ct. at 2463, 2467.\\n22\\n Id. at 2466.\\n\\n\\n\\n\\n 8\\n\\npresumption is necessary here to determine under Renfro that\\nplaintiffs’ claims were properly dismissed.\\n\\n For the above reasons, I conclude that the District\\nCourt’s analysis of this case, following Renfro, was the correct\\none.\\n\\n III\\n\\n Turning then to a more pragmatic concern with the\\npleading here, ERISA states that a civil action may be brought\\n“by the Secretary, or by a participant, beneficiary or\\nfiduciary.”23 This statutory edict, however, does not override\\nthe constitutional requirements for standing.24 In order for a\\nplaintiff to carry her burden of establishing constitutional\\nstanding,25 three elements must be met: (1) an injury in fact\\n“that is concrete and particularized and actual or imminent, as\\nopposed to conjectural or hypothetical”, (2) a causal\\nconnection between that injury and the conduct so that the\\n\\n23\\n 29 U.S.C. § 1132(a)(2).\\n24\\n Perelman v. Perelman, 793 F.3d 368, 373–74 (3d Cir. 2015).\\nAs the majority points out, Perelman is a defined-benefit case\\nbrought under 29 U.S.C. § 1132(a)(3), and a footnote in\\nPerelman does approve of representative suits by plan\\nparticipants or beneficiaries under § 1132(a)(2). The issue in\\nthe instant case, however, is that we do not have sufficient\\ninformation about the putative representatives to determine\\nwhether the harms they are claiming, which do not implicate\\nevery Plan participant, have affected them specifically.\\n25\\n “The burden of establishing standing lies with the plaintiff.”\\nId. at 373 (citing Berg v. Obama, 586 F.3d 234, 238 (3d Cir.\\n2009)).\\n\\n\\n\\n\\n 9\\n\\ninjury is fairly traceable to the defendant’s action, and (3) “it\\nmust be likely, as opposed to merely speculative, that the injury\\nwill be redressed by a favorable decision.”26 We have held that\\n“an ERISA beneficiary suffers an injury-in-fact . . . when a\\ndefendant allegedly breaches its fiduciary duty, profits from\\nthe breach, and the beneficiary, as opposed to the plan, has an\\nindividual right to the profit.”27\\n\\n Plaintiffs allege that the Plan’s use of the 58 retail-class\\nfunds that had cheaper institutional-class analogues caused an\\ninjury in fact sufficient to confer standing for Count V. They\\ndo not, however, automatically have an individual right to the\\nalleged lost profits simply because they are participants in the\\nPlan broadly. At argument, plaintiffs specifically conceded\\nthat Tier 1 did not include any of the 58 funds challenged in\\nCount V; plaintiffs limited their focus in Count V to Tiers 3\\nand 4. Therefore, in order for plaintiffs to carry the burden of\\nproof that they were injured by the selection of the 58 retail-\\nclass funds, they must plead that they were participants in Tier\\n3 or Tier 4. They have not done so here.\\n\\n The amended complaint does not contain facts that link\\nany of the named plaintiffs to any tier at any point during the\\nclass period. While a paragraph in the complaint is devoted to\\neach of the six plaintiffs, each of those paragraphs consists of\\nthree sentences. The first lists the plaintiff’s name and\\nresidence, the second states the plaintiff’s job title, and the third\\nsentence is as follows, with changes only for gender: “She is\\n\\n26\\n Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 415\\n(3d Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504\\nU.S. 555, 560 (1992)).\\n27\\n Id. at 418 (emphasis added).\\n\\n\\n\\n\\n 10\\n\\na participant in the Plan under 29 U.S.C. § 1002(7) because she\\nand her beneficiaries are or may become eligible to receive\\nbenefits under the Plan.”28 This averment indicates merely that\\nplaintiffs are participants under the definition of § 1132(a)(2).\\nIt provides no information as to which tier, or tiers, any\\nindividual plaintiff chose for investment. Indeed, the entire\\nrecord contains no direct information on this point. Plaintiffs\\nconceded this at oral argument. The “standing” portion of the\\namended complaint does imply that plaintiffs invested in ways\\nconsistent with being in a more active investment tier, but it\\ndoes so by alleging generally that “the named Plaintiffs and all\\nparticipants in the Plan suffered financial harm” as a result of\\ndefendants conduct alleged in Count V. 29 This cannot be\\nsufficient.30\\n\\n This language in the amended complaint appears to\\nmirror its citation to LaRue v. DeWolff, Boberg & Assocs. to\\nsupport standing here.31 However, LaRue does not save\\nplaintiffs. The two situations in LaRue that the Supreme Court\\n\\n28\\n App. 39–40.\\n29\\n App. 36 ¶ 8(a); see, e.g., Emergency Physicians of St. Clare’s\\nv. United Health Care, No. 14-CV-404, 2014 WL 7404563, at\\n*4 (D.N.J. Dec. 29, 2014) (dismissing plaintiff’s ERISA suit\\ndue to lack of standing under 29 U.S.C. § 1132(a)(2) as the\\ncomplaint would have required the district court to read\\nadditional implied details into a complaint).\\n30\\n As the majority opinion states, an investor is not confined to\\na single tier. This does not change the fact that no information\\nis provided in the complaint that allows us to identify whether\\nany of the appellees invested in either a relevant fund or a\\nrelevant tier.\\n31\\n 552 U.S. 248 (2008).\\n\\n\\n\\n\\n 11\\n\\nheld to constitute cognizable claims under § 1132(a)(2) were\\ninstances when “a fiduciary breach diminishes plan assets\\npayable to all participants and beneficiaries, or . . . to persons\\ntied to particular individual accounts.”32 The latter justification\\nis identical to our test above, and as counsel conceded at\\nargument, the plan’s system of tiers included at least one tier,\\nTier 1, that was not alleged to have been affected by retail-class\\ninvestments, rendering the former justification inapplicable.\\nAs a result, I would affirm the District Court’s dismissal of\\nCount V.33\\n\\n If this were the only deficiency in plaintiffs’ amended\\ncomplaint, the appropriate remedy would be to dismiss Count\\nV without prejudice to allow plaintiffs an opportunity to allege\\nsufficient facts regarding the tiers they invested in. However,\\nfor the reasons below, I believe that dismissing Count V\\nwithout prejudice would be futile because plaintiffs have\\notherwise failed to plead a claim upon which relief can be\\ngranted.34\\n\\n IV\\n\\n\\n32\\n Id. at 256 (emphasis added).\\n33\\n Count III’s allegation of excessive overall recordkeeping\\nfees implicates all participants and thus survives this analysis,\\nbut it still fails for the reasons stated in Part V below.\\n34\\n “Leave to amend is properly denied if amendment would be\\nfutile, i.e., if the proposed complaint could not ‘withstand a\\nrenewed motion to dismiss.’” City of Cambridge Retirement\\nSys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878 (3d\\nCir. 2018) (quoting Jablonski v. Pan Am. World Airways, Inc.,\\n863 F.2d 289, 292 (3d Cir. 1988)).\\n\\n\\n\\n\\n 12\\n\\n In Renfro v. Unisys Corp., we evaluated a similar\\ncomplaint at the same stage in litigation, and determined that\\nthe mix and range of investment options in the retirement plan\\nprovided by Unisys was sufficient to demonstrate that the\\ndefendants’ fiduciary duty had been met.35 Despite a greater\\nmix and range of options in the instant case, the majority\\nbelieves that the standards that foreclosed the plaintiffs’\\narguments in Renfro do not do so here. However, a close look\\nat the facts indicates that plaintiffs’ arguments under both\\nCounts III and V are the same as, if not in fact weaker than, in\\nRenfro.\\n\\n I will turn to Count V first. Three fact patterns were\\npresented in Renfro: the facts surrounding the Unisys plan as\\nwell as facts from two cases we considered from other circuits\\nwith opposite outcomes. In Braden v. Wal-Mart Stores, Inc.,\\nthe Eighth Circuit reversed the district court’s grant of a motion\\nto dismiss, as the plan at issue contained only thirteen\\ninvestment options and was alleged to be part of a kickback\\nscheme.36 In contrast, in Hecker v. Deere & Co., the Seventh\\nCircuit affirmed the dismissal of a complaint against a plan\\nwith twenty-three mutual fund options and a third-party service\\nthat provided beneficiaries access to hundreds more.37 The\\nSeventh Circuit reasoned that it was implausible that this\\nstructure did not grant beneficiaries sufficient investment\\n\\n\\n\\n\\n35\\n 671 F.3d 314, 325–28 (3d Cir. 2011).\\n36\\n 588 F.3d 585, 589–90, 596 (8th Cir. 2009); see also Renfro,\\n671 F.3d at 327.\\n37\\n 556 F.3d 575, 578–79, 586 (7th Cir. 2009); see also Renfro,\\n671 F.3d at 326–27.\\n\\n\\n\\n\\n 13\\n\\nchoices, as the fees on each of these options ranged from 0.07%\\nto 1% across all funds.38\\n In Renfro, the Unisys plan included 73 distinct\\ninvestment options,39 71 of which were specifically named in\\nthe operative complaint as having excessive fees. Fees among\\nthe investment options in the Unisys plan ranged from 0.1% to\\n1.21%. We held that since the allegations solely contested the\\nfees charged in the Unisys plan, we could not “infer from what\\nis alleged that the process was flawed,”40 and we affirmed the\\ndismissal of the excessive investment fees claim.41\\n\\n In the instant case, the Plan has had a minimum of 78\\ninvestment options during the class period, 58 of which are\\nspecifically contested in the amended complaint. Fees among\\nthese options in the Plan range from 0.04% to 0.87%. Despite\\nplaintiffs’ claims that these fees are excessive, their attempts to\\ndistinguish Renfro boil down to the level of detail in the\\ncomplaint rather than, for example, any change in market\\ncircumstances that might render this 0.04% to 0.87% range\\nexcessively high today. While the question of fiduciary breach\\ndoes not boil down to a numerical calculation, plaintiffs do not\\ncontest that the Plan has a greater number of investment\\noptions than the Unisys plan and that the highest and lowest\\nfees charged by Plan funds are both lower than in Renfro. It is\\ntherefore difficult to see, in the absence of additional\\nallegations regarding market circumstances or fiduciary\\nmisconduct, how this claim could be plausible if the claims in\\nRenfro were not.\\n\\n38\\n Hecker, 556 F.3d at 586.\\n39\\n 671 F.3d at 327.\\n40\\n Renfro, 671 F.3d at 327 (quoting Braden, 588 F.3d at 596).\\n41\\n Id. at 328.\\n\\n\\n\\n\\n 14\\n\\n The majority believes that endorsing this reasoning\\nwould allow a fiduciary to “avoid liability by stocking a plan\\nwith hundreds of options, even if the majority were overpriced\\nor underperforming.”42 This oversimplifies the analysis in\\nRenfro, which afforded substantial weight in its discussion of\\nBraden to allegations of a kickback scheme.43 If coupled with\\nother allegations of mismanagement, a plan flooded with\\nhundreds of options might itself be evidence of an imprudently\\nclumsy attempt at fiduciary compliance or a distraction from\\nbad-faith dealings.\\n\\n In the instant case, plaintiffs do not allege any such\\nschemes. Even their prohibited transaction claims, which the\\nmajority properly dismissed, derive from an “extremely broad”\\nreading of 29 U.S.C. § 1106 rather than any self-interest on the\\npart of the fiduciaries. Without more, the Count V challenge\\nto the Plan is neatly circumscribed by Renfro, regardless of the\\nlevel of specificity devoted to the pleadings.44\\n\\n Moreover, plaintiffs’ admission that the challenged\\nfunds are primarily offered to Tiers 3 and 4 compels this\\noutcome. If the challenged funds were being provided in Tier\\n\\n42\\n Maj. Op. at 16.\\n43\\n See Renfro, 671 F.3d at 327 (“Unlike the pleadings in\\nBraden, plaintiffs have not contended there was any sort of\\nconcealed kickback scheme . . . .”).\\n44\\n The majority’s reliance on Tibble v. Edison International,\\n843 F.3d 1187 (9th Cir. 2016) (“Tibble IV”), is misplaced. To\\nthe extent that Tibble IV, a Ninth Circuit case, contradicts an\\nopinion of the Third Circuit in Renfro, it cannot apply in this\\ncase.\\n\\n\\n\\n\\n 15\\n\\n1—that is, to investors who wished to have their investments\\nmanaged for them—the selection of more expensive share\\nclasses in a large portion of the fund would be concerning.\\nHowever, since Tiers 3 and 4 attract investors who have a more\\nsophisticated understanding of investment options and,\\ninversely, are unlikely to attract investors who might be easily\\nconfused by the available investments, the overall mix and\\nrange of options is not disturbed by the fact that only the retail-\\nclass option was available for a proportion of the funds in these\\ntiers. The majority stresses the importance of “Penn’s ‘conduct\\nin arriving at an investment decision’”45 but fails to mention\\nthat twenty funds were switched from retail-class shares to\\ninstitutional-class shares between 2011 and 2016, a shift that\\ndemonstrates that defendants, in choosing investment options,\\nwere not deliberately ignoring the benefits of institutional-class\\nshares.\\n\\n The majority alternatively suggests that this analysis is\\ntoo singularly focused on numerical performance or on\\nallegations of misconduct. But both cannot be true\\nsimultaneously. A plausible allegation of either kind at the\\npleading stage would be sufficient to defeat a motion to\\ndismiss, but plaintiffs here have not plausibly alleged either. I\\nwould therefore affirm the District Court’s dismissal of Count\\nV.\\n\\n V\\n\\n The plain text of Renfro also mandates that plaintiffs’\\nCount III claim regarding the method of calculating fees must\\nfail. In rejecting a similar, albeit less thoroughly pled,\\n\\n45\\n Maj. Op. at 21 n.7.\\n\\n\\n\\n\\n 16\\n\\nexcessive fees claim, we stated that the Renfro plaintiffs’\\n“allegations concerning fees are directed exclusively to the fee\\nstructure and are limited to contentions that Unisys should have\\npaid per-participant fees rather than fees based on a percentage\\nof assets in the plan.”46 This is an exact description of Count\\nIII, and the parallel logic is apparent between the two\\ncomplaints, even if the amended complaint here is\\nsupplemented with more concrete numbers than the Renfro\\ncomplaint. The allegations that failed in Renfro must fail here\\nalso.\\n\\n The majority relies solely on Tussey v. ABB, Inc.47 to\\ndemonstrate that claims involving excessive recordkeeping\\nfees can survive a motion to dismiss. This reliance is improper.\\nThe Eighth Circuit noted that “unlike” cases like Renfro,\\nTussey “involve[d] significant allegations of wrongdoing,\\nincluding allegations that ABB used revenue sharing to benefit\\nABB and Fidelity at the Plan’s expense.”48 Plaintiffs had\\nproven, during a bench trial, that ABB had been explicitly\\nwarned about the excessiveness of their revenue sharing\\nagreement and had failed to act in any way upon that warning.49\\n\\n\\n\\n\\n46\\n 671 F.3d at 327.\\n47\\n 746 F.3d 327 (8th Cir. 2014).\\n48\\n Tussey, 746 F.3d at 336.\\n49\\n Id. (“The district court found, as a matter of fact, that the\\nABB fiduciaries [failed to take curative steps] even after\\nABB’s own outside consultant notified ABB the Plan was\\noverpaying for recordkeeping and might be subsidizing ABB’s\\nother corporate services.”).\\n\\n\\n\\n\\n 17\\n\\nNo such facts are alleged here, and as such, plaintiffs’ Count\\nIII claim must fail.50\\n\\n VI\\n\\n For these reasons, I would affirm the District Court’s\\ndismissal of all counts of the amended complaint. I therefore\\nrespectfully dissent from the majority’s decision to reverse the\\nDistrict Court’s dismissal of Counts III and V of the amended\\ncomplaint.\\n\\n\\n\\n\\n50\\n To the extent the majority attempts to rely on DOL Advisory\\nOpinion 2013-03A to support its position that revenue sharing\\nreimbursements might be necessary to satisfy the prudent man\\nstandard, this reliance is also misplaced. The quoted language\\nin the advisory opinion merely opines on what a fiduciary must\\ndo during revenue sharing negotiations in order to satisfy the\\nprudent man standard. DOL Advisory Opinion 2013-03A,\\n2013 WL 3546834, at *4 (“Prudence requires that a plan\\nfiduciary, prior to entering into such an arrangement, will\\nunderstand the formula, methodology and assumptions used by\\nPrincipal . . . following disclosure by Principal of all relevant\\ninformation pertaining to the proposed arrangement.”).\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4393425/\", \"author_raw\": \"ROTH, Senior Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"FISHER"},"judge2":{"kind":"string","value":"ROTH"},"judge3":{"kind":"string","value":"FISHER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4616172/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":5,"string":"5"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jennifer SWEDA; Benjamin A. Wiggins; Robert L. Young ; Faith Pickering; Pushkar Sohoni; Rebecca N. Toner, Individually and as Representatives of a Class of Participants and Beneficiaries on Behalf of the University of Pennsylvania Matching Plan, Appellants v. UNIVERSITY OF PENNSYLVANIA; Investment Committee; Jack Heuer\nCourt: U.S. Court of Appeals for the Third Circuit\nDate decided: 2019-05-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______\n\n No. 17-3244\n ______\n\nJENNIFER SWEDA; BENJAMIN A. WIGGINS; ROBERT\n L. YOUNG;\nFAITH PICKERING; PUSHKAR SOHONI; REBECCA N.\n TONER,\n individually and as representatives of a class of participants\n and\n beneficiaries on behalf of the University of Pennsylvania\n Matching Plan,\n\n Appellants\n\n v.\n\n UNIVERSITY OF PENNSYLVANIA; INVESTMENT\n COMMITTEE; JACK HEUER\n ______\n\n On Appeal from the United States District Court\n For the Eastern District of Pennsylvania\n (E.D. Pa. No. 2-16-cv-04329)\n District Judge: Honorable Gene E.K. Pratter\n\n _______\n\n Argued October 2, 2018\n Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.\n\n (Opinion Filed: May 2, 2019)\n\n\nJerome J. Schlichter\nSean E. Soyars\nKurt C. Struckhoff\nMichael A. Wolff [ARGUED]\nSchlichter Bogard & Denton\n100 South 4th Street, Suite 1200\nSt. Louis, MO 63102\n Counsel for Appellants\n\n\nBrian T. Ortelere [ARGUED]\nMorgan Lewis & Bockius\n1701 Market Street\nPhiladelphia, PA 19103\n\nChristopher J. Boran\nMatthew A. Russell\nMorgan Lewis & Bockius\n77 West Wacker Drive\nChicago, IL 60601\n\nMichael E. Kenneally\nMorgan Lewis & Bockius\n1111 Pennsylvania Avenue, N.W.\nSuite 800 North\nWashington, DC 20004\n Counsel for Appellees\n\n\n\n\n 2\n\nBrian T. Burgess\nJaime A. Santos\nGoodwin Procter\n901 New York Avenue, NW\nSuite 900 East\nWashington, DC 20001\n\nAlison V. Douglass\nJames O. Fleckner\nGoodwin Procter\n100 Northern Avenue\nBoston, MA 02210\n Counsel for Chamber of Commerce of The United\nStates of America and American Benefits Council, Amicus\nAppellees\n\nBrian D. Netter\nMayer Brown\n1999 K Street, N.W.\nWashington, DC 20006\n Counsel for American Association of State Colleges\nand Universities, American Council on Education,\nAssociation of American Universities, Association of\nCommunity College Trustees, Association of Public and\nLand-Grant Universities, College and University\nProfessional Association For Human Resources, Council of\nIndependent Colleges, National Association of Independent\nColleges and Universities, Amicus Appellees\n\nLori A. Martin\nWilmerHale\n7 World Trade Center\n\n\n\n\n 3\n\n250 Greenwich Street\nNew York, NY 10007\n\nSeth P. Waxman\nPaul R. Wolfson\nWilmerHale\n1875 Pennsylvania Avenue, N.W.\nWashington, DC 20006\n Counsel for Teachers Insurance & Annuity\nAssociation of America, Amicus Appellee\n ______\n\n OPINION OF THE COURT\n ______\n\nFISHER, Circuit Judge.\n Plaintiffs Jennifer Sweda, Benjamin Wiggins, Robert\nYoung, Faith Pickering, Pushkar Sohoni, and Rebecca Toner,\nrepresenting a class of participants in the University of\nPennsylvania’s 403(b) defined contribution, individual\naccount, employee pension benefit plan, sued Defendants, the\nUniversity of Pennsylvania and its appointed fiduciaries, for\nbreach of fiduciary duty, prohibited transactions, and failure to\nmonitor fiduciaries under the Employee Retirement Income\nSecurity Act (ERISA), 29 U.S.C. §§ 1001-1461. Plaintiffs\n(collectively, “Sweda”) alleged that Defendants (collectively,\n“Penn”), among other things, failed to use prudent and loyal\ndecision making processes regarding investments and\nadministration, overpaid certain fees by up to 600%, and failed\nto remove underperforming options from the retirement plan’s\nofferings. The District Court dismissed Sweda’s complaint in\nits entirety. We will reverse the District Court’s dismissal of\nthe breach of fiduciary duty claims at Counts III and V only\n\n\n\n\n 4\n\nand remand for further proceedings.\n I.\n Sweda and her fellow Plaintiffs-Appellants are current\nand former Penn employees who participate, or participated, in\nPenn’s retirement plan (the “Plan”). They sought to represent\nthe proposed class of Plan participants, 20,000 current and\nformer Penn employees who had participated in the Plan since\nAugust 10, 2010. The Defendants are the University of\nPennsylvania, its Investment Committee, and Jack Heuer, the\nUniversity’s Vice President of Human Resources. The Plan is\na defined contribution plan under 29 U.S.C. § 1002(34), tax\nqualified under 26 U.S.C. § 403(b). The University matches\nemployees’ contributions up to 5% of compensation.\n As a 403(b), the Plan offers mutual funds and annuities:\nthe former through TIAA-CREF and Vanguard Group, Inc.\nand the latter through TIAA-CREF. Since 2010, the Plan has\noffered as many as 118 investment options. As of December\n2014, the Plan offered 78 options: 48 Vanguard mutual funds,\nand 30 TIAA-CREF options including mutual funds, fixed and\nvariable annuities, and an insurance company separate account.\nEffective October 19, 2012, Penn organized its investment\nfund lineup into four tiers. The TIAA-CREF and Vanguard\noptions under Tier 1 consisted of lifecycle or target-date funds\nfor the “Do-it-for-me” investor. Certain core funds were\ndesignated Tier 2, designed for the “Help-me-do-it” investor\nlooking to be involved in his or her investment choices without\nhaving to decide among too many options. Under Tier 3, the\nPlan offered an “expanded menu of funds” for “the more\nadvanced ‘mix-my-own’ investor,” and under Tier 4, the Plan\noffered the option of a brokerage account window for the “self-\ndirected” investor looking for additional options, subject to\nadditional fees. Plan participants thereafter could “select a\n\n\n\n\n 5\n\ncombination of funds from any or all of the investment tiers.”\nAt the end of 2014, the Plan had $3.8 billion in assets: $2.5\nbillion invested in TIAA-CREF options, and $1.3 billion\ninvested in Vanguard options.\n TIAA-CREF and Vanguard charge investment and\nadministrative (recordkeeping) fees. Mutual fund investment\nfees are charged as a percentage of a fund’s managed assets,\nknown as the expense ratio, and the rate can differ by share\nclass. The mutual funds in which the Plan invests have two\nshare classes: retail and institutional. Retail class shares\ngenerally have higher investment fees than institutional class\nshares. There are also two common recordkeeping fee models.\nIn a flat fee model, recordkeeping fees are a set amount per\nparticipant, whereas in a revenue sharing model, part of an\noption’s expense ratio is diverted to administrative service\nproviders. TIAA-CREF and Vanguard charged the Plan under\nthe revenue sharing model.\n Sweda alleged numerous breaches of fiduciary duty and\nprohibited transactions. She brought six counts against all\nDefendants, and one count against the University. The first six\ncounts alleged breaches of fiduciary duty in violation of 29\nU.S.C. § 1104(a)(1) (Counts I, III, and V) and prohibited\ntransactions in violation of 29 U.S.C. § 1106(a)(1) (Counts II,\nIV, and VI). Sweda also alleged that the University failed to\nadequately monitor its appointed fiduciaries in Count VII.\n Penn moved to dismiss the complaint, and the District\nCourt granted the motion. The court determined that Sweda\nfailed to state a claim for fiduciary breach under Bell Atl. Corp.\nv. Twombly, 550 U.S. 544 (2007) and Renfro v. Unisys Corp.,\n671 F.3d 314 (3d Cir. 2011), because her factual allegations\ncould also indicate rational conduct. As for the prohibited\ntransaction claims, the court held that the service agreements\n\n\n\n\n 6\n\ncould not constitute prohibited transactions without an\nallegation that Penn had the subjective intent to benefit a party\nin interest. The court dismissed Count VII after determining\nthat it was duplicative of the claims at Counts I, III, and V.1\nSweda now appeals.\n II.\n The District Court had jurisdiction under 28 U.S.C.\n§ 1331 and 29 U.S.C. § 1132(e)(1) and (f). We have\njurisdiction under 28 U.S.C. § 1291. We conduct plenary\nreview of an order granting a motion to dismiss for failure to\nstate a claim under Federal Rule of Civil Procedure (12)(b)(6).\nRenfro, 671 F.3d at 320; Burtch v. Milberg Factors, Inc., 662\nF.3d 212, 220 (3d Cir. 2011).\n III.\nA. Pleadings standards for claims brought under ERISA\n The question in this case is whether Sweda stated a\nclaim that should survive termination at the earliest stage in\nlitigation. When a court grants a motion to dismiss a complaint\nunder Rule 12(b)(6), it deprives a plaintiff of the benefit of the\ncourt’s adjudication of the merits of its claim before the court\nconsiders any evidence. That is why, in exercising our plenary\nreview, we apply the same standard as the district court and\nconstrue the complaint “in the light most favorable to the\nplaintiff,” Santomenno ex rel. John Hancock Tr. v. John\nHancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014)\n(citation and internal quotation marks omitted), to determine\n\n 1\n Sweda does not address the District Court’s dismissal\nof Count VII in her opening brief. Therefore, the District\nCourt’s dismissal of Count VII is not before us on appeal.\nBarna v. Bd. of Sch. Dir. of the Panther Valley Sch. Dist., 877\nF.3d 136, 145 (3d Cir. 2017).\n\n\n\n\n 7\n\nwhether it “contain[s] sufficient factual matter, accepted as\ntrue, to ‘state a claim to relief that is plausible on its face,’”\nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.\nCorp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]e disregard\nrote recitals of the elements of a cause of action, legal\nconclusions, and mere conclusory statements.” James v. City\nof Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A claim\n“has facial plausibility when the pleaded factual content allows\nthe court to draw the reasonable inference that the defendant is\nliable for the misconduct alleged.” Thompson v. Real Estate\nMortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (citation and\ninternal quotation marks omitted).\n Here, the District Court held that Sweda’s complaint did\nnot state a plausible claim, observing at various points in its\nmemorandum that “[a]s in Twombly, the actions are at least\n‘just as much in line with a wide swath of rational and\ncompetitive business strategy’ in the market as they are with a\nfiduciary breach.” Sweda v. Univ. of Pennsylvania, No. CV 16-\n4329, 2017 WL 4179752, at *7, 8 (E.D. Pa. Sept. 21, 2017)\n(quoting Twombly, 550 U.S. at 554). However, Twombly’s\ndiscussion of alleged misconduct that is “just as much in line\nwith a wide swath of rational and competitive business\nstrategy” is specific to antitrust cases. 550 U.S. at 554. In an\nantitrust case, “a conclusory allegation of agreement at some\nunidentified point does not supply facts adequate to show\nillegality,” therefore “when allegations of parallel conduct are\nset out in order to make a § 1 claim, they must be placed in a\ncontext that raises a suggestion of a preceding agreement, not\nmerely parallel conduct that could just as well be independent\naction.” Id. at 557.\n One of our sister circuits has declined to extend\nTwombly’s antitrust pleading rule to breach of fiduciary duty\nclaims under ERISA because “[r]equiring a plaintiff to rule out\n\n\n\n\n 8\n\nevery possible lawful explanation for the conduct he\nchallenges would invert the principle that the complaint is\nconstrued most favorably to the nonmoving party.” Braden v.\nWal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009)\n(citation and internal quotation marks omitted). We agree, and\ndecline to extend Twombly’s antitrust pleading rule to such\nclaims. To the extent that the District Court required Sweda to\nrule out lawful explanations for Penn’s conduct, it erred.\n We now turn to the task of evaluating Sweda’s\ncomplaint. We progress in three steps: First, we will note the\nelements of a claim; second, we will identify allegations that\nare conclusory and therefore not assumed to be true, and; third,\naccepting the factual allegations as true, we will view them and\nreasonable inferences drawn from them in the light most\nfavorable to Sweda to decide whether “they plausibly give rise\nto an entitlement to relief.” Connelly v. Lane Constr. Corp.,\n809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at\n679).2 Pleadings that establish only a mere possibility of\nmisconduct do not show entitlement to relief. Fowler, 578 F.3d\nat 211.\n In our evaluation of the complaint, we must account for\nthe fact that Rule 8(a)(2), Twombly, and Iqbal operate with\ncontextual specificity. Renfro, 671 F.3d at 321 (“[W]e must\nexamine the context of a claim, including the underlying\nsubstantive law, in order to assess its plausibility.”). Therefore,\nERISA’s purpose informs our assessment of Sweda’s\n\n 2\n We have also described this as a two-step analysis, but\nthe task is the same. See Fowler v. UPMC Shadyside, 578 F.3d\n203, 210-11 (3d Cir. 2009) (the court (1) separates factual and\nlegal elements of a claim and takes the well-pleaded factual\nallegations as true, and (2) determines whether those facts state\na plausible claim for relief).\n\n\n\n\n 9\n\npleadings. ERISA’s protective function is the focal point of the\nstatute. The statute plainly states that ERISA is a response to\n“the lack of employee information and adequate safeguards\nconcerning [employee benefit plans’] operation,” and adds that\nERISA reflects Congress’s desire “that disclosure be made and\nsafeguards be provided with respect to the establishment,\noperation, and administration of such plans.” 29 U.S.C.\n§ 1001(a). This Court has repeatedly acknowledged and\naffirmed ERISA’s protective function. See e.g. McCann v.\nUnum Provident, 907 F.3d 130, 143 (3d Cir. 2018); Edmonson\nv. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 413 (3d Cir. 2013);\nNat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 81 (3d Cir. 2012).\nERISA furthers “the national public interest in safeguarding\nanticipated employee benefits” upon which individuals’\nlivelihoods depend. Cutaiar v. Marshall, 590 F.2d 523, 529 (3d\nCir. 1979).\n ERISA also “represents a careful balancing between\nensuring fair and prompt enforcement of rights under a plan\nand the encouragement of the creation of such plans.” Fifth\nThird Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2470 (2014)\n(citations and internal quotation marks omitted); In re Unisys\nSav. Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996) (ERISA\n“protect[s] and strengthen[s] the rights of employees” and\n“encourage[s] the development of private retirement plans.”).\nPlan sponsors and fiduciaries have reliance interests in the\ncourts’ interpretation of ERISA when establishing plan\nmanagement practices. ERISA “‘induc[es] employers to offer\nbenefits by assuring a predictable set of liabilities.’” Renfro,\n671 F.3d at 321 (quoting Rush Prudential HMO, Inc. v. Moran,\n536 U.S. 355, 379 (2002)). Both pursuits—participant\nprotection and plan creation—are important considerations at\nthe pleadings stage.\n Two sections of the statute are particularly important to\n\n\n\n\n 10\n\nthis appeal: the section outlining fiduciary duties, 29 U.S.C.\n§ 1104, and the section prohibiting certain transactions, id.\n§ 1106. Under § 1104(a), fiduciaries are held to the prudent\nman standard of care,3 which is drawn from trust law. Tibble v.\nEdison Int'l (Tibble III), 135 S. Ct. 1823, 1828 (2015); In re\nUnisys, 74 F.3d at 434 (“Congress has instructed that section\n1104 ‘in essence, codifies and makes applicable to …\nfiduciaries certain principles developed in the evolution of the\nlaw of trusts.’”) (quoting S. Rep. No. 127, 93 Cong., 2d Sess.\n(1974)). Section 1104(a) lays the foundation of fiduciary duty,\nand § 1106(a) “[s]upplement[s] that foundational obligation”\nby “erect[ing] a categorical bar to transactions between the\nplan and a ‘party in interest’ deemed likely to injure the plan.”\nNat’l Sec. Sys., Inc., 700 F.3d at 82.\n The standards for fiduciary conduct in §§ 1104 and\n1106 may overlap. When evaluating whether there has been a\nbreach of fiduciary duties under § 1104, courts may consider\nthe administrator’s need to “defray[] reasonable expenses of\nadministering [a] plan.” 29 U.S.C. § 1104(a)(1)(A)(ii). A\nprohibited transactions claim under § 1106 might also involve\nexpense-related transactions between a plan and party in\ninterest. Id. § 1106(a)(1)(C). Despite the overlap, a fiduciary\nwho breaches the duties under § 1104(a) does not necessarily\nviolate § 1106(a). Because Sweda alleged that Penn breached\nits fiduciary duties and caused the Plan to engage in prohibited\ntransactions, we will first address claims under § 1104(a)(1)\n\n 3\n The duties in § 1104(a) fully apply to all fiduciaries\nexcept fiduciaries of Employee Stock Ownership Plans\n(ESOPs). Fifth Third Bancorp, 134 S. Ct. at 2467. Neither\nESOPs nor the fiduciary duties accompanying them are at issue\nin this case.\n\n\n\n\n 11\n\n(Counts I, III, and V), and then address her claims under\n§ 1106(a)(1) (Counts II, IV, and VI).\nB. Section 1104(a)(1) claims (Counts I, III, and V)\n 1. Elements of a claim under § 1104(a)(1)\n In reviewing the District Court’s dismissal of Sweda’s\nfiduciary breach claims, our first task is to identify the elements\nof such a claim. They are: “(1) a plan fiduciary (2) breaches an\nERISA-imposed duty (3) causing a loss to the plan.” Leckey v.\nStefano, 501 F.3d 212, 225–26 (3d Cir. 2007), as amended\n(Dec. 21, 2007). Because the parties do not dispute that Penn\nis a fiduciary or whether loss was adequately alleged, our focus\nis whether Sweda adequately alleged that Penn breached its\nfiduciary duties. A fiduciary must “discharge his duties with\nrespect to a plan solely in the interest of the participants and\nbeneficiaries . . . for the exclusive purpose of . . . providing\nbenefits to participants and their beneficiaries; and . . .\ndefraying reasonable expenses of administering the plan.” 29\nU.S.C. § 1104(a)(1), (a)(1)(A). As explained above, fiduciaries\nare held to the “prudent man” standard of care, which requires\nfiduciaries to exercise “the care, skill, prudence, and diligence\nunder the circumstances then prevailing that a prudent man\nacting in a like capacity and familiar with such matters would\nuse in the conduct of an enterprise of a like character and with\nlike aims.” Id. § 1104(a)(1)(B). Fiduciaries are also required to\ndiversify investments unless it would be imprudent,4 and to\nadminister the plan according to governing documents and\ninstruments. Id. § 1104(a)(1)(C), (D). Fiduciaries are\npersonally liable for losses due to breach. Id. § 1109(a).\n A fiduciary must prudently select investments, and\n\n 4\n ESOP fiduciaries are exempted from the general duty\nto diversify. Fifth Third Bancorp, 134 S. Ct. at 2467.\n\n\n\n\n 12\n\nfailure to “monitor . . . investments and remove imprudent\nones” may constitute a breach. See Tibble III, 135 S. Ct. at\n1828-29; see also 29 C.F.R. § 2550.404a-1(b)(1)(i) (fiduciaries\nmust give “appropriate consideration to those facts and\ncircumstances that . . . the fiduciary knows or should know are\nrelevant to the particular investment or investment course of\naction involved”); see also Fink v. Nat’l Sav. & Trust Co., 772\nF.2d 951, 957 (D.C. Cir. 1985) (“investigation of the merits of\na particular investment is at the heart of the prudent person\nstandard”). Fiduciaries must also understand and monitor plan\nexpenses. “Expenses, such as management or administrative\nfees, can sometimes significantly reduce the value of an\naccount in a defined-contribution plan,” Tibble III, 135 S. Ct.\nat 1826, by decreasing its immediate value, and by depriving\nthe participant of the prospective value of funds that would\nhave continued to grow if not taken out in fees. Recognizing\nthe substantial impact of a fiduciary’s choice among fee\noptions, the Ninth Circuit, in Tibble v. Edison Int’l (Tibble II),\naffirmed the district court’s finding that the plan fiduciary’s\ninclusion of retail class shares of three funds when institutional\nclass shares of the same funds were available for 24 to 40 fewer\nbasis points, was a fiduciary breach. 729 F.3d 1110, 1137-39\n(9th Cir. 2013), vacated on other grounds, 135 S. Ct. 1823\n(2015).\n Cognizant of the impact of fees on Plan value,\nfiduciaries should be vigilant in “negotiation of the specific\nformula and methodology” by which fee payments such as\n“revenue sharing will be credited to the plan and paid back to\nthe plan or to plan service providers.” DOL Advisory Opinion\n\n\n\n\n 13\n\n2013-03A, 2013 WL 3546834, at *4.5 Fiduciaries must also\nconsider a plan’s “power . . . to obtain favorable investment\nproducts, particularly when those products are substantially\nidentical—other than their lower cost—to products the trustee\nhas already selected.” Tibble v. Edison Int’l (Tibble IV), 843\nF.3d 1187, 1198 (9th Cir. 2016). See Tibble II, 729 F.3d at 1137\nn.24 (common knowledge that investment minimums are often\nwaived for large plans). When expenses are paid from plan\nassets, fiduciaries must ensure that the assets are used “for the\nexclusive purpose of providing benefits to participants and\nbeneficiaries and defraying reasonable expenses of\nadministering the plan.” DOL Advisory Opinion 2001-01A,\n2001 WL 125092, at *1. See 29 U.S.C. § 1104(a)(1)(A).\n Bearing these fiduciary duties in mind, a court assesses\n\n 5\n Under ERISA Procedure 76-1 § 10, only the parties\ndescribed in a request for a DOL advisory opinion may rely on\nthe opinion, and only to the extent that the problem is fully and\naccurately described in the request. Advisory Op. Procedure,\n41 Fed. Reg. 36281-02 (August 27, 1976). The opinions do not\nhave precedential effect. “Because of the nature and limitations\nof these rulings,” the Supreme Court declined to “express [a]\nview as to whether they are or are not entitled to deference” in\nComm'r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 162 n.3\n(1993). Such advisory opinions are likely “entitled to respect”\nto the extent that they have the “power to persuade” under the\nSupreme Court’s decision in Skidmore v. Swift & Co., 323 U.S.\n134, 140 (1944). Christensen v. Harris Cty., 529 U.S. 576, 587\n(2000) (citations omitted). See e.g. Caremark, Inc. v. Goetz,\n480 F.3d 779, 790 (6th Cir. 2007) (deference to DOL advisory\nopinion was warranted because of the opinion’s persuasive\nforce and its consistency with federal and state law and\nregulations).\n\n\n\n\n 14\n\na fiduciary’s performance by looking at process rather than\nresults, “focusing on a fiduciary's conduct in arriving at [a] . . .\ndecision . . . and asking whether a fiduciary employed the\nappropriate methods to investigate and determine the merits of\na particular investment.” In re Unisys, 74 F.3d at 434 (citations\nomitted). A fiduciary’s process must bear the marks of loyalty,\nskill, and diligence expected of an expert in the field. It is not\nenough to avoid misconduct, kickback schemes, and bad-faith\ndealings. The law expects more than good intentions. “[A] pure\nheart and an empty head are not enough.” DiFelice v. U.S.\nAirways, Inc., 497 F.3d 410, 418 (4th Cir. 2007) (quoting\nDonovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir.\n1983)). Many allegations concerning fiduciary conduct, such\nas reasonableness of “compensation for services” are\n“inherently factual question[s]” for which neither ERISA nor\nthe Department of Labor give specific guidance. DOL\nAdvisory Opinion 2013-03A, 2013 WL 3546834, at *4-5.\n In Renfro, we established the pleading standard for\nbreach of fiduciary duty under ERISA after examining the\nreasoning of other Circuits that had addressed the issue in light\nof Twombly and Iqbal, particularly Hecker v. Deere & Co., 556\nF.3d 575 (7th Cir. 2009), and Braden v. Wal–Mart Stores, Inc.,\n588 F.3d 585 (8th Cir. 2009). The Renfro plaintiffs challenged\nthe mix and range of investment options in their retirement\nplan, the use of asset-based rather than per-participant fees, and\nthe alleged imbalance of the fees charged and services\nrendered. 671 F.3d at 326. The district court granted\ndefendants’ motion to dismiss, holding that “the plan offered a\nsufficient mix of investments . . . [such] that no rational trier of\nfact could find, on the basis of the facts alleged in the operative\ncomplaint, that the . . . defendants breached an ERISA\nfiduciary duty by offering [that] particular array of investment\nvehicles.” Id. at 320 (citations and internal quotation marks\n\n\n\n\n 15\n\nomitted).\n We affirmed. Id. at 327-28. We determined that we\ncould not “infer from what [was] alleged that the [fiduciary’s]\nprocess was flawed.” Id. at 327 (quoting Braden, 588 F.3d at\n596). We held that ERISA plans should offer meaningful\nchoices to their participants, and that:\n [T]he range of investment options\n and the characteristics of those\n included options—including the\n risk profiles, investment strategies,\n and associated fees—are highly\n relevant and readily ascertainable\n facts against which the plausibility\n of claims challenging the overall\n composition of a plan's mix and\n range of investment options should\n be measured.\nId. We explained that a fiduciary breach claim must be\nexamined against the backdrop of the mix and range of\navailable investment options. Id. We did not hold, however,\nthat a meaningful mix and range of investment options\ninsulates plan fiduciaries from liability for breach of fiduciary\nduty. Such a standard would allow a fiduciary to avoid liability\nby stocking a plan with hundreds of options, even if the\nmajority were overpriced or underperforming. One important\nreason why we cannot read Renfro to establish such a bright-\nline rule (that providing a range of investment options satisfies\na fiduciary’s duty) is that ERISA fiduciaries have a duty to act\nprudently according to current practices—as the statute puts it,\nthe “circumstances then prevailing.” 29 U.S.C.\n§ 1104(a)(1)(B). Practices change over time, and bright line\nrules would hinder courts’ evaluation of fiduciaries’\n\n\n\n\n 16\n\nperformance against contemporary industry practices. Bearing\nthese things in mind, we turn to Sweda’s complaint to\ndetermine whether she adequately alleged fiduciary breach in\nCounts I, III, and V.\n 2. Conclusory allegations of fiduciary breach\n First, we must eliminate conclusory allegations from the\ncomplaint. Connelly, 809 F.3d at 787. Sweda included a few\nconclusory allegations, such as “a prudent process would have\nproduced a different outcome,” Am. Compl. ¶75, but\nconclusory statements of that variety are rare in the complaint,\nand after discarding them, many well-pleaded factual\nallegations remain.\n 3. Well-pleaded facts alleging breach of fiduciary duty\n Sweda alleged that Penn was “responsible for hiring\nadministrative service providers, such as a recordkeeper, and\nnegotiating and approving those service providers’\ncompensation.” Am. Compl. ¶36. She also alleged that Penn\nwas responsible for the menu of investment options available\nto participants. Id. In Count I, she alleged that Penn entered a\n“lock-in” agreement with TIAA-CREF that mandated\ninclusion of the CREF Stock and Money Market accounts, and\nrequired the Plan to use TIAA-CREF as a recordkeeper. Am.\nCompl. ¶86.\n In Count III, Sweda alleged that Penn paid excessive\nadministrative fees, failed to solicit bids from service\nproviders, failed to monitor revenue sharing, failed to leverage\nthe Plan’s size to obtain lower fees or rebates, and failed to\ncomprehensively review Plan management. Specifically,\nSweda alleged that the Plan paid between $4.5 and $5.5 million\nin annual recordkeeping fees at a time when similar plans paid\n$700,000 to $750,000 for the same services. Sweda also\nalleged that percentage-based fees went up as assets grew,\n\n\n\n\n 17\n\ndespite there being no corresponding increase in recordkeeping\nservices. Sweda alleged that Penn could have negotiated for a\ncap on fees or renegotiated the fee structure, but failed to do\neither. Sweda also alleged that Penn could have assessed the\nreasonableness of Plan recordkeeping fees by soliciting\ncompetitive bids, but, unlike prudent fiduciaries, failed to do\nso. For contrast, Sweda offered examples of similarly situated\nfiduciaries who acted prudently, such as fiduciaries at Loyola\nMarymount who hired an independent consultant to request\nrecordkeeping proposals and consolidated services with a\nsingle provider. Sweda pointed to similar moves at Pepperdine,\nPurdue, and CalTech, as well as Caltech’s negotiation for $15\nmillion in revenue sharing rebates. Sweda alleged that unlike\nthose organizations, Penn failed to review Plan management,\nand fell behind other fiduciaries in the industry.\n In Count V, Sweda alleged that Penn breached its\nfiduciary duties by: paying unreasonable investment fees,\nincluding and retaining high-cost investment options with\nhistorically poor performance compared to available\nalternatives, and retaining multiple options in the same asset\nclass and investment style. Specifically, Sweda alleged that\ndespite the availability of low-cost institutional class shares,\nPenn selected and retained identically managed but higher cost\nretail class shares. She included a table comparing options in\n\n\n\n\n 18\n\nthe Plan with the readily available cheaper alternatives.6 Sweda\nalso alleged that some options in the line-up had layers of\nunnecessary fees. Not only did Sweda allege that the options\nPenn selected and retained were imprudently costly, she also\nalleged that they were duplicative thereby decreasing the value\nof actively managed funds, reducing the Plan’s leverage, and\nconfusing participants. Sweda also alleged that 60% of Plan\noptions underperformed appropriate benchmarks, and that\nPenn failed to remove underperformers. Sweda pointed to the\nCREF Stock Account and TIAA Real Estate Account as\nexamples of consistent underperformers. She alleged that\nPenn’s process of selecting and managing options must have\nbeen flawed if Penn retained expensive underperformers over\n\n 6\n Most of the investment options Sweda criticized in her\ncomplaint were designated as Tier 3 and Tier 4 options. Sweda\nalso criticized Tier 2 options such as the TIAA-CREF\nInternational Equity Index Fund, listed in Sweda’s table\ncomparing Plan options with their “lower-cost, but otherwise\nidentical” alternatives. Sweda confirmed that criticized options\nfell under Tiers 2, 3, and 4 at oral argument. Oral Arg. at 7:33.\nAt this time we do not address whether Penn may be able to\nassert a defense to liability under 29 U.S.C. § 1104(c) due to\nparticipants’ self-directed investing activity. The § 1104(c)\nsafe harbor defense is an affirmative defense and therefore it is\ngenerally not part of a court’s consideration of a motion to\ndismiss under Rule 12(b)(6), except where the defense has\nbeen anticipated by a plaintiff’s complaint. Hecker, 556 F.3d\nat 588 (citing In re Unisys, 74 F.3d at 446 for the classification\nof § 1104(c) as an affirmative defense). Unlike the plaintiffs in\nHecker who explicitly and “thoroughly anticipated” the safe\nharbor defense, Sweda did not “put it in play” at the pleadings\nstage. Id.\n\n\n\n\n 19\n\nbetter performing, cheaper alternatives. At this stage, her\nfactual allegations must be taken as true, and every reasonable\ninference from them must be drawn in her favor. Connelly, 809\nF.3d at 790.\n 4. Sweda plausibly stated a claim in Counts III and V\n At this final step, we employ a holistic approach,\nconsidering all of Sweda’s well-pleaded factual allegations\nincluding the range of investment options alongside other\ngermane factors such as reasonableness of fees, selection and\nretention of investment options, and practices of similarly\nsituated fiduciaries, to determine whether her allegations\nplausibly demonstrate entitlement to relief. See Renfro, 671\nF.3d at 327; see also Braden, 588 F.3d at 598 (statute’s\nremedial scheme “counsel[s] careful and holistic evaluation of\nan ERISA complaint’s factual allegations before concluding\nthat they do not support a plausible inference that the plaintiff\nis entitled to relief.”). The complaint should not be “parsed\npiece by piece to determine whether each allegation, in\nisolation, is plausible.” Braden, 588 F.3d at 594. See Tatum v.\nRJR Pension Inv. Comm., 761 F.3d 346, 360 (4th Cir. 2014)\n(citing DiFelice, 497 F.3d at 420) (courts must look to the\ntotality of the circumstances to assess the prudence of\ninvestment decisions).\n Sweda plausibly alleged breach of fiduciary duty.\nSweda’s factual allegations are not merely “unadorned, the-\ndefendant-unlawfully-harmed-me accusation[s].” Iqbal, 556\nU.S. at 678. As recounted above, they are numerous and\nspecific factual allegations that Penn did not perform its\nfiduciary duties with the level of care, skill, prudence, and\ndiligence to which Plan participants are statutorily entitled\nunder § 1104(a)(1). Sweda offered specific comparisons\nbetween returns on Plan investment options and readily\n\n\n\n\n 20\n\navailable alternatives, as well as practices of similarly situated\nfiduciaries to show what plan administrators “acting in a like\ncapacity and familiar with such matters would [do] in the\nconduct of an enterprise of a like character and with like aims.”\n29 U.S.C. § 1104(a)(1)(B).7 The allegations plausibly allege\nthat Penn failed to “defray[] reasonable expenses of\nadministering the plan” and otherwise failed to “discharge [its]\nduties” according to the prudent man standard of care. Id.\n§ 1104(a)(1)(A)(ii) and (B).\n Other appellate courts have found that similar conduct\nplausibly indicates breach of fiduciary duty. For instance, in\nTussey v. ABB, Inc., the Eighth Circuit held that the district\ncourt did not err in finding fiduciaries breached their duties by\n“[failing to] (1) calculate the amount the Plan was paying [the\nrecordkeeper] for recordkeeping through revenue sharing, (2)\ndetermine whether [the recordkeeper’s] pricing was\ncompetitive, [or] (3) adequately leverage the Plan's size to\nreduce fees,” among other things. 746 F.3d 327, 336 (8th Cir.\n\n 7\n Sweda also directly compared fees on options included\nin the Plan with readily available lower-cost options. The\ndissent suggests that because the range of fees on options\nincluded in the Plan is lower than the range of challenged fees\nin Renfro, Sweda needed to allege a change in market\ncircumstances since Renfro was decided to state a plausible\nclaim. In making that suggestion, the dissent misses the object\nof our inquiry, that is, Penn’s “conduct in arriving at an\ninvestment decision.” In re Unisys, 74 F.3d at 434 (citations\nomitted). To that end, the allegations in Sweda’s complaint\nshow that Penn frequently selected higher cost investments\nwhen identical lower-cost investments were available. This is\none of many allegations that, together, plausibly allege that\nPenn breached its fiduciary duty.\n\n\n\n\n 21\n\n2014). In Tibble IV, the Ninth Circuit held that whether a\nfiduciary breached its fiduciary duties by selecting a higher\ncost share class was an issue requiring development by the\ndistrict court, and remanded the case for further proceedings.\n843 F.3d at 1197-98.\n In dismissing the claims in Counts III and V, the District\nCourt erred by “ignor[ing] reasonable inferences supported by\nthe facts alleged,” and by drawing “inferences in [Defendants’]\nfavor, faulting [Plaintiffs] for failing to plead facts tending to\ncontradict those inferences.” Braden, 588 F.3d at 595. While\nSweda may not have directly alleged how Penn mismanaged\nthe Plan, she provided substantial circumstantial evidence from\nwhich the District Court could “reasonably infer” that a breach\nhad occurred. Pension Benefit Guar. Corp. ex rel. St. Vincent\nCatholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.\nInc., 712 F.3d 705, 718 (2d Cir. 2013) (citation and internal\nquotation marks omitted). Based on her allegations, the claims\nin Counts III and V should not have been dismissed.\n Penn argues that allowing Sweda to proceed on this\ncomplaint ignores fiduciary discretion, and also argues that it\nin fact employed a prudent process in its Plan management.\nFinally, Penn argues that reversal would overexpose ERISA\nfiduciaries to liability. According to Penn, ERISA fiduciaries\nare “afforded a healthy measure of discretion in deciding what\nis in the plan participants’ interests.” Br. of Appellees at 2. At\noral argument, Penn emphasized fiduciary discretion, calling it\nthe “hallmark of fiduciary activity.” Oral Arg. at 25:05. Penn\nis not incorrect that the exercise of discretionary authority over\nplan assets is a characteristic of fiduciaries such that courts can\nidentify fiduciaries by this trait, see Pohl v. Nat'l Benefits\nConsultants, Inc., 956 F.2d 126, 129 (7th Cir. 1992), nor is\nPenn incorrect that discretion is an important aspect of\nfiduciary behavior that the courts should consider in evaluating\n\n\n\n\n 22\n\nfiduciary performance. ERISA fiduciaries, like trustees, are\nafforded discretion because “[t]here are no universally\naccepted and enduring theories of financial markets or\nprescriptions for investment that can provide clear and specific\nguidance,” therefore “[v]aried approaches to the prudent\ninvestment” of assets are permissible. Restatement (Third) of\nTrusts § 90 (2007), cmt. f.\n However, while fiduciaries have discretion in plan\nmanagement, that discretion is bounded by the prudent man\nstandard. Discretion “does not mean . . . that the legal standard\nof prudence is without substantive content or that there are no\nprinciples by which the fiduciary's conduct may be guided and\njudged,” rather a fiduciary’s conduct at all times “must be\nreasonably supported in concept and must be implemented\nwith proper care, skill, and caution.” Id. Fiduciary discretion\nmust be exercised within the statutory parameters of prudence\nand loyalty. See DOL Advisory Op. 2006-08A, 2006 WL\n2990326, at *3. Those parameters impose a fiduciary standard\nthat is considered “the highest known to the law.” Tatum, 761\nF.3d at 355–56 (quoting Donovan v. Bierwirth, 680 F.2d 263,\n272 n.8 (2d Cir. 1982)). See Varity Corp. v. Howe, 516 U.S.\n489, 497 (1996) (ERISA fiduciary duty may even exceed\nfiduciary duty as derived from the common law of trusts).\nTherefore, while we recognize and appreciate fiduciary\ndiscretion, if there is indeed a “hallmark” of fiduciary activity\nidentified in the statute, it is prudence. See 29 U.S.C. § 1104(a).\n As to Penn’s second argument, that it did in fact employ\na prudent process, this argument goes to the merits and is\nmisplaced at this early stage. Although Penn may be able to\ndemonstrate that its process was prudent, we are not permitted\nto accept Penn’s account of the facts or draw inferences in\nPenn’s favor at this stage of litigation. Finally, we address\nPenn’s argument, supported by amici including the American\n\n\n\n\n 23\n\nCouncil on Education and the Chamber of Commerce of the\nUnited States of America8, that allowing Sweda’s complaint\nthrough the 12(b)(6) gate will overexpose plan sponsors and\nfiduciaries to costly litigation and will discourage them from\noffering benefit plans at all. Br. of Appellees at 38. Penn\npredicts that reversal would “give class action lawyers a free\nticket to discovery and the opportunity to demand extortionate\nsettlements.” Id.9 Penn’s solution is to interpret Renfro to mean\nthat if a plan fiduciary provides a “mix and range of investment\noptions,” plaintiffs cannot plausibly allege breach of fiduciary\n\n 8\n As well as the American Association of State Colleges\nand Universities (AASCU), Association of American\nUniversities (AAU), Association of Community College\nTrustees (ACCT), Association of Public and Land Grant\nUniversities (APLU), College and University Professional\nAssociation for Human Resources (CUPA-HR), Council of\nIndependent Colleges (CIC), National Association of\nIndependent Colleges and Universities (NAICU), and the\nAmerican Benefits Council.\n 9\n The dissent also expresses concern that reversal will\noverexpose university sponsors and volunteer fiduciaries to\nclass action claims designed to yield large settlements and\nsignificant attorneys’ fees. The dissent fears that universities\nwill be less likely to offer benefit plans and fiduciaries less\nlikely to volunteer their services. If that is the case, we should\nleave it to Congress to address the possibility of a different\nfiduciary standard that is suitable to the goal of inducing\nuniversities to offer plans and would-be fiduciaries to\nvolunteer. As it stands, ERISA fiduciaries are held to one\nstandard under § 1104 and we cannot adjust our pleadings\nstandards to accommodate subcategories of sponsors and\nfiduciaries.\n\n\n\n\n 24\n\nduty.\n The Supreme Court addressed a nearly identical\nconcern in Fifth Third Bancorp. There, the defendants\n“[sought] relief from what they believe[d were] meritless,\neconomically burdensome lawsuits.” 134 S. Ct. at 2470. The\nCourt explained that while Congress, through ERISA, sought\nto encourage creation of retirement plans, that purpose was not\nintended to prevent participants with meritorious claims from\ngaining access to the courts. Id. While Fifth Third concerned\nan ESOP plan and defendants’ request for a presumption of\nprudence, its reasoning is apt here. Despite our appreciation of\nPenn and amici’s fear of frivolous litigation, if we were to\ninterpret Renfro to bar a complaint as detailed and specific as\nthe complaint here, we would insulate from liability every\nfiduciary who, although imprudent, initially selected a “mix\nand range” of investment options. Neither the statute nor our\nprecedent justifies such a rule. We will therefore reverse the\nDistrict Court’s dismissal of the claims in Counts III and V,\nand remand for further proceedings.10\n\n 10\n The dissent argues that we ought to affirm the District\nCourt’s dismissal of Count V for Sweda’s want of\nconstitutional standing under Edmonson v. Lincoln Nat’l Life\nIns. Co., 725 F.3d 406 (3d Cir. 2013). The dissent argues that\nbecause Sweda conceded that most of the underperforming\noptions are in Tiers 3 and 4, the plaintiffs should have included\ninformation about whether they invested in Tier 3 or Tier 4\noptions in the complaint. In the dissent’s view, plaintiffs’\nfailure to include that information constitutes a failure to allege\nan injury in fact. However, while the complaint does not\nidentify plaintiffs’ investment options by tier, it does contain\nfacts that indicate that the named plaintiffs invested in the\nunderperforming investment options. In a paragraph entitled\n\n\n\n\n 25\n\n“Standing” in the complaint, Sweda included the following\ninformation:\n\n To the extent the Plaintiffs must\n also show an individual injury . . .\n each Plaintiff has suffered such an\n injury, in at least the following\n ways . . . The named Plaintiffs’\n individual accounts in the Plan\n were further harmed by\n Defendants’ breaches of fiduciary\n duties because one or more of the\n named Plaintiffs during the\n proposed class period (1) invested\n in underperforming options\n including the CREF Stock and\n TIAA Real Estate accounts[.]\n\n App. 36-37. This allegation links the named plaintiffs\nwith the underperforming investment options and is sufficient\nto show individual injuries.\n In light of the dissent’s point on constitutional standing,\nwe should address the issue as it pertains to participants and\nbeneficiaries who bring a civil action against fiduciaries under\n29 U.S.C. § 1132(a)(2). The dissent cites this Court’s decision\nin Perelman v. Perelman, where we held that participants in a\ndefined benefit plan could not show actual injury for\nconstitutional standing for an § 1132(a)(3) claim by pointing\nto a “diminution of plan assets” because such participants are\nentitled to a fixed periodic payment rather than part of the asset\npool. 793 F.3d 368, 374 (3d Cir. 2015). We also noted that\n“[t]here is no question that representative suits by plan\n\n\n\n\n 26\n\n We will affirm dismissal of Count I because it is time\nbarred. Fairview Twp. v. U.S. Envtl. Prot. Agency, 773 F.2d\n517, 525 n.15 (3d Cir. 1985) (we may affirm on any basis).\nSweda limited her claim to the initial agreement between the\nPlan and TIAA-CREF to include the CREF Stock and Money\nMarket accounts in the Plan, and to use TIAA-CREF for\nrecordkeeping. This agreement was entered into prior to\nDecember 31, 2009, and Sweda filed her initial complaint on\nAugust 10, 2016. Sweda did not present this claim as an\nongoing breach like the petitioners in Tibble III, 135 S. Ct.\n1823. Although we must draw every reasonable inference in\nSweda’s favor, we will not read factual allegations into a\ncomplaint. Count I is therefore time barred under the six-year\nstatute of limitations. 29 U.S.C. § 1113(1).11\n\n\nparticipants or beneficiaries against fiduciaries for breach of\nfiduciary duty are permitted by, and generally brought under,\nERISA § [1132(a)(2)].” Id. at 376 n.6. This case implicates the\nlatter part of our observation in Perelman because Sweda\nbrought this suit under § 1132(a)(2) on behalf of the Plan.\n 11\n No action may be commenced under this subchapter\nwith respect to a fiduciary's breach of any responsibility, duty,\nor obligation under this part, or with respect to a violation of\nthis part, after the earlier of--\n (1) six years after (A) the date of the last action which\n constituted a part of the breach or violation, or (B) in the\n case of an omission the latest date on which the fiduciary\n could have cured the breach or violation, or\n (2) three years after the earliest date on which the plaintiff\n had actual knowledge of the breach or violation;\nexcept that in the case of fraud or concealment, such action\nmay be commenced not later than six years after the date of\ndiscovery of such breach or violation. 29 U.S.C. § 1113.\n\n\n\n\n 27\n\nC. Section 1106(a)(1) claims (Counts II, IV, and VI)\n 1. Elements of a claim under § 1106(a)(1)\n Section 1106(a) supplements the fiduciary duties by\nspecifically prohibiting certain transactions between plans and\nparties in interest. The elements of a party-in-interest,\nprohibited transaction claim are: (1) the fiduciary causes (2) a\nlisted transaction to occur (3) between the plan and a party in\ninterest. 29 U.S.C. § 1106(a)(1). ERISA defines “party in\ninterest” as “a person providing services to such plan.” 29\nU.S.C. § 1002(14)(B). Sweda argues that TIAA-CREF and\nVanguard are parties in interest according to the plain language\nof § 1002(14)(B). She also points to a Department of Labor\nadvisory opinion holding that a life insurance company that\nprovided recordkeeping and related services to a retirement\nplan would be a party in interest under the statute. See DOL\nAdvisory Opinion 2013-03A, 2013 WL 3546834. Importantly,\nan investment company does not become a party in interest\nmerely because a plan invests in securities issued by the\ninvestment company. 29 U.S.C. § 1002(21)(B).\n Fiduciaries are prohibited from causing a plan to engage\nin the transactions listed at § 1106(a)(1). Those transactions\nare:\n (A) sale or exchange, or leasing, of\n any property between the plan and\n a party in interest; (B) lending of\n money or other extension of credit\n between the plan and a party in\n interest; (C) furnishing of goods,\n services, or facilities between the\n plan and a party in interest; (D)\n transfer to, or use by or for the\n benefit of a party in interest, of any\n\n\n\n\n 28\n\n assets of the plan; or (E)\n acquisition, on behalf of the plan,\n of any employer security or\n employer real property in violation\n of section 1107(a) of this title.\nBetween the definition of service providers as parties in\ninterest, id. § 1002(14)(B), and this exhaustive list of\nprohibited transactions, § 1106(a)(1) could be read to have an\nextremely broad application. Some courts have embraced that\nbreadth and interpreted § 1106(a)(1) to prohibit almost any\ntransaction with a party in interest. The Seventh Circuit, for\nexample, has held that § 1106(a)(1) creates a per se rule against\nparty in interest transactions, so that plaintiffs who allege such\ntransactions may do so without even pleading\nunreasonableness of fees. Allen v. GreatBanc Trust Co., 835\nF.3d 670, 676 (7th Cir. 2016). In Allen, the Seventh Circuit\nruled that the exemptions from prohibited transactions, under\n29 U.S.C. § 1108, are affirmative defenses, and that\n“plaintiff[s] ha[ve] no duty to negate any or all of them” in a\ncomplaint. Id. It also noted that five other circuits (the Second,\nFourth, Fifth, Eighth, and Ninth) have ruled similarly. Id. See\nBraden, 588 F.3d at 600-01 (plaintiff did not have to plead\nfacts “raising a plausible inference that the payments were\nunreasonable” because exemption in § 1108 is a defense raised\nby defendant). Responding to concerns about a flood of\nprohibited transaction claims, the Seventh Circuit reasoned\nthat Rule 11 sanctions and reasonable risk aversion would\nprevent the floodgates from opening. Allen, 835 F.3d at 677.\n We decline to read § 1106(a)(1) as the Seventh Circuit\ndoes because it is improbable that § 1106(a)(1), which was\ndesigned to prevent “transactions deemed likely to injure the .\n. . plan” and “self-dealing,” Nat’l Sec. Sys., Inc., 700 F.3d at 92\n(citation and internal quotation marks omitted), would prohibit\n\n\n\n\n 29\n\nubiquitous service transactions and require a fiduciary to plead\nreasonableness as an affirmative defense under § 1108 to avoid\nsuit. Not even Sweda advocates for such a broad reading of\n§ 1106(a)(1), conceding in her complaint that “paying for\nrecordkeeping with asset-based revenue sharing is not [a] per\nse violation of ERISA.” Am. Compl. ¶101. One of the reasons\nwe do not find Allen persuasive is that the transactions the\nSeventh Circuit scrutinized in Allen were a far cry from the\nordinary service arrangements at issue here. In Allen, an ESOP\nfiduciary bought the employer’s stock using a loan financed by\nthe principal shareholders of the company. The value of the\nstock then fell so drastically that “[t]he Plan’s participants, all\nemployees of [the company], wound up being on the hook for\ninterest payments on the loan.” Allen, 835 F.3d at 673. A\ntransaction of that variety is far removed from ordinary\nrecordkeeping arrangements. Therefore, Allen does not\nprovide sufficient justification to recognize a per se rule that\nevery furnishing of goods or services between a plan and party\nin interest is a prohibited transaction under § 1106(a)(1).\n Our ruling today does not conflict with our earlier\ndecisions holding that transactions between a plan and plan\nfiduciaries are per se prohibited under § 1106(b). See Cutaiar,\n590 F.2d at 528; see also Nat’l Sec. Sys., Inc., 700 F.3d at 94.\nIn Cutaiar, we held that “[w]hen identical trustees of two\nemployee benefit plans whose participants and beneficiaries\nare not identical effect a loan between the plans without a\n[§ 1108] exemption, a per se violation of ERISA exists” under\n§ 1106(b)(2). 590 F.2d at 529. In National Security Systems,\nwe held that a transaction between a plan and fiduciary that is\ntainted by self-dealing is a per se violation of § 1106(b)(3)\n“regardless of the reasonableness of compensation.” 700 F.3d\nat 93. Those cases do not control here because § 1106(a) and\n(b) have distinct purposes: “[s]ubsection (a) erects a\n\n\n\n\n 30\n\ncategorical bar to transactions between the plan and a ‘party in\ninterest’ deemed likely to injure the plan,” and “[s]ubsection\n(b) prohibits plan fiduciaries from entering into transactions\nwith the plan tainted by conflict-of-interest and self-dealing\nconcerns.” Id. at 82. The protective function of ERISA is at its\nheight in the latter scenario when there is a risk of fiduciary\nself-dealing. The instances where participants might benefit\nfrom a transaction between a plan and a fiduciary are so rare\nthat they can be prohibited outright.\n Reading § 1106(a)(1) as a per se rule barring all\ntransactions between a plan and party in interest would miss\nthe balance that Congress struck in ERISA, because it would\nexpose fiduciaries to liability for every transaction whereby\nservices are rendered to the plan. See Renfro, 671 F.3d at 321\n(“In enacting ERISA, Congress ‘resolved innumerable\ndisputes between powerful competing interests—not all in\nfavor of potential plaintiffs.’” (quoting Mertens v. Hewitt\nAssocs., 508 U.S. 248, 262 (1993))). Additionally, if we\ninterpreted § 1106(a)(1) to prohibit every transaction for\nservices to a plan, we would have to ignore other parts of the\nstatute. For instance, ERISA specifically acknowledges that\ncertain services are necessary to administer plans. See 29\nU.S.C. § 1104(a)(1)(A)(ii). Interpreting § 1106(a)(1) to\nprohibit necessary services would be absurd, and when one\ninterpretation of a statute leads to an absurd result, we may\nconsider an alternative interpretation that avoids the absurdity.\nThorpe v. Borough of Jim Thorpe, 770 F.3d 255, 263 (3d Cir.\n2014) (quoting First Merchants Acceptance Corp. v. J.C.\nBradford & Co., 198 F.3d 394, 402 (3d Cir. 1999)). Therefore\nwe decline to interpret § 1106(a)(1) as prohibiting per se the\n“furnishing of goods [or] services,” 29 U.S.C. § 1106(a)(1)(C),\nby all “person[s] providing services to [the] plan,” id.\n\n\n\n\n 31\n\n§ 1002(14)(B).12\n The Supreme Court similarly avoided absurdity in its\ninterpretation of § 1106(a)(1) in Lockheed Corp. (addressing\nwhether the administrator of a plan could condition payment\non performance by participants). The Court held that payments\nof benefits to a participant, which under a hyper-literal reading\nof the statute could be understood as “a transfer to, or use by\nor for the benefit of a party in interest, of any assets of the\nplan,” 29 U.S.C. § 1106(a)(1)(D), was not a prohibited\ntransaction. Lockheed Corp., 517 U.S. at 892-93. The Supreme\nCourt rejected the hyper-literal reading because it would have\nbeen absurd and illogical in the context of the statute. Id. The\nCourt went through the subsections of § 1106(a)(1), listing the\ndifferent statutorily prohibited transactions, and explained that\nthey follow a common thread: they are all “commercial\nbargains that present a special risk of plan underfunding\nbecause they are struck with plan insiders, presumably not at\narm’s length.” Id. at 893. The Court distinguished payment of\nplan benefits because they “cannot reasonably be said to share\nthat characteristic.” Id.\n We have interpreted § 1106(a)(1)(D) similarly, holding\nthat a violation occurs when: (1) a fiduciary, (2) causes a plan\nto engage in a transaction, (3) that uses plan assets, (4) for the\n\n 12\n Moreover, § 1106(a) was not designed to prevent\nnegotiation between unaffiliated parties. See Lockheed Corp.\nv. Spink, 517 U.S. 882, 893 (1996). Thus, if a service provider\nhas no prior relationship with a plan before entering a service\nagreement, the service provider is not a party in interest at the\ntime of the agreement. As explained herein, it only becomes a\nparty in interest after the initial transaction occurs, and\nsubsequent transactions are not prohibited absent self-dealing\nor disloyal conduct.\n\n\n\n\n 32\n\nbenefit of a party in interest, and (5) “the fiduciary ‘knows or\nshould know’ that elements three and four are satisfied.” Reich\nv. Compton, 57 F.3d 270, 278 (3d Cir. 1995). In Reich, we held\nthat specific intent is required because of the plain meaning of\nthe statutory phrase “for the benefit,” and also because if\n§ 1106(a)(1)(D) did not require “subjective intent to benefit a\nparty in interest, [it] would produce unreasonable\nconsequences that we feel confident Congress could not have\nwanted.” Id. at 279.\n The Supreme Court’s identification of the common\nthread in § 1106(a)(1), a special risk to the plan from a\ntransaction presumably not at arm’s length—and its\ndetermination that transactions that do not share that common\nthread are permissible—as well as our interpretation of\n§ 1106(a)(1)(D), represent a more harmonious way to interpret\nthe prohibited transactions listed in § 1106(a)(1) in the context\nof the statute as a whole. The element of intent to benefit a\nparty in interest effects the purpose of § 1106(a)(1), which is\nto rout out transactions that benefit such parties at the expense\nof participants. Section 1106(a)(1) is not meant to impede\nnecessary service transactions, but rather transactions that\npresent legitimate risks to participants and beneficiaries such\nas “securities purchases or sales by a plan to manipulate the\nprice of the security to the advantage of a party-in-interest.”\nLeigh v. Engle, 727 F.2d 113, 127 (7th Cir. 1984) (quoting H.R.\nConf. Rep. No. 1280, 93rd Cong., 2d Sess. 308) (alteration\nomitted). We therefore hold that absent factual allegations that\nsupport an element of intent to benefit a party in interest, a\nplaintiff does not plausibly allege that a “transaction that\nconstitutes a direct or indirect . . . furnishing of goods, services,\nor facilities between the plan and a party in interest” prohibited\nby § 1106(a)(1)(C) has occurred. Requiring plaintiffs to allege\nfacts supporting this element avoids absurdity in interpreting\n\n\n\n\n 33\n\nthe statute.\n 2. Conclusory and well-pleaded factual allegations of\n prohibited transactions\n The factual allegations that Sweda included in her\ncomplaint to support her claims for prohibited transactions\noverlap with the allegations supporting her fiduciary breach\nclaims. Besides the allegations recounted above, Sweda\nalleged that revenue sharing was “kicked back” to TIAA-\nCREF for recordkeeping associated with TIAA-CREF options.\nAm. Compl. ¶109. She alleged that Penn “allowed TIAA’s\nfinancial interest to dictate the Plan’s investment selections and\nrecordkeeping arrangement.” Am. Compl. ¶87. She also\nalleged that Penn failed to act in the exclusive interest of\nparticipants, instead “serv[ing] TIAA-CREF’s and Vanguard’s\nfinancial interests” with decisions such as “allowing TIAA-\nCREF and Vanguard to put their proprietary investments in the\nPlan without scrutinizing those providers’ financial interest.”\nAm. Compl. ¶¶112, 200. These general allegations about\nkickbacks and prioritizing TIAA-CREF and Vanguard’s\nfinancial interests over the participant and beneficiaries’\nfinancial interests are largely conclusory, but we also consider\nwell-pleaded factual allegations summarized at § III.B.3 that\nare relevant to Sweda’s prohibited transaction claims.\n 3. Sweda failed to plausibly state a claim under Counts\n II, IV, and VI\n Looking at the totality of the allegations in the\ncomplaint, taken as true, Connelly, 809 F.3d at 787, Sweda\nfailed to state a plausible claim for prohibited transactions in\nCounts II, IV, and VI.\n a. Count II\n In Count II, Sweda alleged that a prohibited transaction\n\n\n\n\n 34\n\noccurred when Penn allowed TIAA-CREF to require inclusion\nof CREF Stock and Money Market accounts among the Plan’s\ninvestment options and agreed to TIAA-CREF recordkeeping\nservices, pursuant to a “lock-in” agreement. Am. Compl. ¶193.\nTwo of Sweda’s prohibited transaction claims emanate from\nthis agreement: (1) that a prohibited transaction occurred at the\ntime of the initial agreement, and (2) that a prohibited\ntransaction occurred every time fees were later paid pursuant\nto the agreement. As to the initial agreement, Sweda did not\nsufficiently allege that TIAA-CREF was a party in interest at\nthat time: she included no allegation that TIAA-CREF was\n“providing services to [the] plan,” 29 U.S.C. § 1002(14)(B).\nBecause Sweda failed to allege that TIAA-CREF was a party\nin interest at the time of the “lock-in,” that element is factually\nunsupported, and she failed to state a claim for the first alleged\nprohibited transaction in Count II. Sweda’s second claim in\nCount II that prohibited transactions occurred every time\nproperty was exchanged or services were rendered pursuant to\nthe “lock-in” agreement is so closely related to Count IV\n(payment of recordkeeping fees) that we will address these\nclaims together.\n b. Counts II and IV\n In Counts II and IV, Sweda alleged that Penn caused the\nPlan to enter prohibited transactions when it caused the Plan to\npay administrative fees to TIAA-CREF and Vanguard. Sweda\nplausibly alleged that TIAA-CREF and Vanguard were parties\nin interest under § 1002(14)(B) because they provided services\nto the plan at the time fees were paid, and Penn’s own Plan\nmaterials identify TIAA-CREF and Vanguard as parties in\ninterest. At the pleadings stage, we must assume that this well-\npleaded fact is true. Next we look to whether Penn caused the\nPlan to enter a prohibited transaction with TIAA-CREF or\nVanguard for administrative fees. Sweda alleged that the\n\n\n\n\n 35\n\nadministrative fee payments constituted prohibited\ntransactions under § 1106(a)(1) in three ways: (1) they were\nprohibited transfers of property under § 1106(a)(1)(A), (2) they\nwere transfers of assets under subsection (D), and (3) they\nconstituted furnishing of services under subsection (C). We\nfirst address whether Sweda plausibly alleged that\nadministrative fee payment by revenue sharing constituted a\ntransfer of property under (A) or Plan assets under (D).\n Sweda alleged that administrative fees were paid by\nrevenue sharing. Am. Compl. ¶¶ 46, 110 (Vanguard is\n“compensated for recordkeeping services based on internal\nrevenue sharing it receives from the Vanguard Investor share\nclass mutual funds.”). She also alleged that investment fees\nwere drawn from mutual fund assets. Am. Compl. ¶44.\n(“Mutual fund fees are usually expressed as a percentage of\nassets under management . . . [t]he fees deducted from a mutual\nfund’s assets . . .”). Mutual fund assets are distinct from Plan\nassets, because, under the statute, assets of “a plan which\ninvests in any security issued by an investment company” do\nnot “include any assets of such investment company.” 29\nU.S.C. § 1101(b)(1). See Hecker, 556 F.3d at 584 (With\nsupport from the Department of Labor, defendants\ndemonstrated that revenue sharing fees did not impinge plan\nassets because they were drawn from the assets of mutual\nfunds). Therefore, Sweda did not plausibly allege that revenue\nsharing involved a transfer of Plan property or assets under\n§ 1106(a)(1)(A) or (D), and furthermore, Sweda did not\nplausibly allege that Penn had subjective intent to benefit a\nTIAA-CREF or Vanguard by a use or transfer of Plan assets,\nwhich, under our precedent, is required to state a claim under\n§ 1106(a)(1)(D). Reich, 57 F.3d at 279.\n Finally, we must address whether a prohibited\ntransaction occurred under § 1106(a)(1)(C), the prohibition of\n\n\n\n\n 36\n\n“furnishing of goods, services, or facilities between the plan\nand a party in interest.” As we explained above, it is possible\nto read subsection (C) to create a per se prohibited transaction\nrule forbidding service arrangements between a plan and a\nparty rendering services to the plan. However, because reading\n§ 1106(a)(1)(C) to that end would be absurd, Sweda must plead\nan element of intent to benefit the party in interest. After\nstriking conclusory allegations, such as “Defendants served\nTIAA-CREF’s and Vanguard’s financial interests” (Am.\nCompl. ¶112) from the complaint, we do not find that Sweda\nalleged facts showing that Penn intended to benefit TIAA-\nCREF or Vanguard. We will affirm the dismissal of Sweda’s\nclaims for prohibited transactions under Counts II and IV.\n c. Count VI\n At Count VI, Sweda alleged that Penn caused the Plan\nto engage in prohibited transactions when it caused the Plan to\npay investment fees to TIAA-CREF and Vanguard. For similar\nreasons that Sweda did not plausibly allege prohibited\ntransactions in Counts II and IV, she also failed to plausibly\nallege prohibited transactions in Count VI. First, Sweda did not\nplausibly allege that payment of investment fees constituted a\nprohibited transaction under § 1106(a)(1)(A), because Sweda\nalleged that investment fees were drawn from mutual fund\nassets, not Plan assets. Second, for the same reason, investment\nfees were not plausibly alleged to be a transfer of assets of the\nPlan under § 1106(a)(1)(D). Third, Sweda did not allege that\nPenn intended to benefit TIAA-CREF or Vanguard under\n§ 1106(a)(1)(D), as required by our precedent. Reich, 57 F.3d\nat 279. Finally, as we explained above in our discussion of\nCounts II and IV, in order to state a claim for prohibited\ntransactions under § 1106(a)(1)(C), “furnishing goods,\nservices, or facilities between the plan and a party in interest,”\na plaintiff must allege intent to benefit a party in interest.\n\n\n\n\n 37\n\nSweda failed to do so. Therefore, we will affirm the dismissal\nof the claim for prohibited transactions under Count VI.\n IV.\n Sweda plausibly alleged that Penn failed to conform to\nthe high standard required of plan fiduciaries under 29 U.S.C.\n§ 1104(a)(1). However, she did not plausibly allege that Penn\ncaused the Plan to enter prohibited transactions under\n§ 1106(a)(1). We therefore will REVERSE the portion of the\nDistrict Court’s order granting the Appellees’ motion to\ndismiss Counts III and V and remand for further proceedings.\nWe will AFFIRM the District Court’s order dismissing Counts\nI, II, IV, VI, and VII.\n\n\n\n\n 38\n\n Sweda v. University of Pennsylvania,\n No. 17-3244\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jennifer SWEDA; Benjamin A. Wiggins; Robert L. Young ; Faith Pickering; Pushkar Sohoni; Rebecca N. Toner, Individually and as Representatives of a Class of Participants and Beneficiaries on Behalf of the University of Pennsylvania Matching Plan, Appellants v. UNIVERSITY OF PENNSYLVANIA; Investment Committee; Jack Heuer\\nCourt: U.S. Court of Appeals for the Third Circuit\\nDate decided: 2019-05-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPRECEDENTIAL\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE THIRD CIRCUIT\\n ______\\n\\n No. 17-3244\\n ______\\n\\nJENNIFER SWEDA; BENJAMIN A. WIGGINS; ROBERT\\n L. YOUNG;\\nFAITH PICKERING; PUSHKAR SOHONI; REBECCA N.\\n TONER,\\n individually and as representatives of a class of participants\\n and\\n beneficiaries on behalf of the University of Pennsylvania\\n Matching Plan,\\n\\n Appellants\\n\\n v.\\n\\n UNIVERSITY OF PENNSYLVANIA; INVESTMENT\\n COMMITTEE; JACK HEUER\\n ______\\n\\n On Appeal from the United States District Court\\n For the Eastern District of Pennsylvania\\n (E.D. Pa. No. 2-16-cv-04329)\\n District Judge: Honorable Gene E.K. Pratter\\n\\n _______\\n\\n Argued October 2, 2018\\n Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.\\n\\n (Opinion Filed: May 2, 2019)\\n\\n\\nJerome J. Schlichter\\nSean E. Soyars\\nKurt C. Struckhoff\\nMichael A. Wolff [ARGUED]\\nSchlichter Bogard & Denton\\n100 South 4th Street, Suite 1200\\nSt. Louis, MO 63102\\n Counsel for Appellants\\n\\n\\nBrian T. Ortelere [ARGUED]\\nMorgan Lewis & Bockius\\n1701 Market Street\\nPhiladelphia, PA 19103\\n\\nChristopher J. Boran\\nMatthew A. Russell\\nMorgan Lewis & Bockius\\n77 West Wacker Drive\\nChicago, IL 60601\\n\\nMichael E. Kenneally\\nMorgan Lewis & Bockius\\n1111 Pennsylvania Avenue, N.W.\\nSuite 800 North\\nWashington, DC 20004\\n Counsel for Appellees\\n\\n\\n\\n\\n 2\\n\\nBrian T. Burgess\\nJaime A. Santos\\nGoodwin Procter\\n901 New York Avenue, NW\\nSuite 900 East\\nWashington, DC 20001\\n\\nAlison V. Douglass\\nJames O. Fleckner\\nGoodwin Procter\\n100 Northern Avenue\\nBoston, MA 02210\\n Counsel for Chamber of Commerce of The United\\nStates of America and American Benefits Council, Amicus\\nAppellees\\n\\nBrian D. Netter\\nMayer Brown\\n1999 K Street, N.W.\\nWashington, DC 20006\\n Counsel for American Association of State Colleges\\nand Universities, American Council on Education,\\nAssociation of American Universities, Association of\\nCommunity College Trustees, Association of Public and\\nLand-Grant Universities, College and University\\nProfessional Association For Human Resources, Council of\\nIndependent Colleges, National Association of Independent\\nColleges and Universities, Amicus Appellees\\n\\nLori A. Martin\\nWilmerHale\\n7 World Trade Center\\n\\n\\n\\n\\n 3\\n\\n250 Greenwich Street\\nNew York, NY 10007\\n\\nSeth P. Waxman\\nPaul R. Wolfson\\nWilmerHale\\n1875 Pennsylvania Avenue, N.W.\\nWashington, DC 20006\\n Counsel for Teachers Insurance & Annuity\\nAssociation of America, Amicus Appellee\\n ______\\n\\n OPINION OF THE COURT\\n ______\\n\\nFISHER, Circuit Judge.\\n Plaintiffs Jennifer Sweda, Benjamin Wiggins, Robert\\nYoung, Faith Pickering, Pushkar Sohoni, and Rebecca Toner,\\nrepresenting a class of participants in the University of\\nPennsylvania’s 403(b) defined contribution, individual\\naccount, employee pension benefit plan, sued Defendants, the\\nUniversity of Pennsylvania and its appointed fiduciaries, for\\nbreach of fiduciary duty, prohibited transactions, and failure to\\nmonitor fiduciaries under the Employee Retirement Income\\nSecurity Act (ERISA), 29 U.S.C. §§ 1001-1461. Plaintiffs\\n(collectively, “Sweda”) alleged that Defendants (collectively,\\n“Penn”), among other things, failed to use prudent and loyal\\ndecision making processes regarding investments and\\nadministration, overpaid certain fees by up to 600%, and failed\\nto remove underperforming options from the retirement plan’s\\nofferings. The District Court dismissed Sweda’s complaint in\\nits entirety. We will reverse the District Court’s dismissal of\\nthe breach of fiduciary duty claims at Counts III and V only\\n\\n\\n\\n\\n 4\\n\\nand remand for further proceedings.\\n I.\\n Sweda and her fellow Plaintiffs-Appellants are current\\nand former Penn employees who participate, or participated, in\\nPenn’s retirement plan (the “Plan”). They sought to represent\\nthe proposed class of Plan participants, 20,000 current and\\nformer Penn employees who had participated in the Plan since\\nAugust 10, 2010. The Defendants are the University of\\nPennsylvania, its Investment Committee, and Jack Heuer, the\\nUniversity’s Vice President of Human Resources. The Plan is\\na defined contribution plan under 29 U.S.C. § 1002(34), tax\\nqualified under 26 U.S.C. § 403(b). The University matches\\nemployees’ contributions up to 5% of compensation.\\n As a 403(b), the Plan offers mutual funds and annuities:\\nthe former through TIAA-CREF and Vanguard Group, Inc.\\nand the latter through TIAA-CREF. Since 2010, the Plan has\\noffered as many as 118 investment options. As of December\\n2014, the Plan offered 78 options: 48 Vanguard mutual funds,\\nand 30 TIAA-CREF options including mutual funds, fixed and\\nvariable annuities, and an insurance company separate account.\\nEffective October 19, 2012, Penn organized its investment\\nfund lineup into four tiers. The TIAA-CREF and Vanguard\\noptions under Tier 1 consisted of lifecycle or target-date funds\\nfor the “Do-it-for-me” investor. Certain core funds were\\ndesignated Tier 2, designed for the “Help-me-do-it” investor\\nlooking to be involved in his or her investment choices without\\nhaving to decide among too many options. Under Tier 3, the\\nPlan offered an “expanded menu of funds” for “the more\\nadvanced ‘mix-my-own’ investor,” and under Tier 4, the Plan\\noffered the option of a brokerage account window for the “self-\\ndirected” investor looking for additional options, subject to\\nadditional fees. Plan participants thereafter could “select a\\n\\n\\n\\n\\n 5\\n\\ncombination of funds from any or all of the investment tiers.”\\nAt the end of 2014, the Plan had $3.8 billion in assets: $2.5\\nbillion invested in TIAA-CREF options, and $1.3 billion\\ninvested in Vanguard options.\\n TIAA-CREF and Vanguard charge investment and\\nadministrative (recordkeeping) fees. Mutual fund investment\\nfees are charged as a percentage of a fund’s managed assets,\\nknown as the expense ratio, and the rate can differ by share\\nclass. The mutual funds in which the Plan invests have two\\nshare classes: retail and institutional. Retail class shares\\ngenerally have higher investment fees than institutional class\\nshares. There are also two common recordkeeping fee models.\\nIn a flat fee model, recordkeeping fees are a set amount per\\nparticipant, whereas in a revenue sharing model, part of an\\noption’s expense ratio is diverted to administrative service\\nproviders. TIAA-CREF and Vanguard charged the Plan under\\nthe revenue sharing model.\\n Sweda alleged numerous breaches of fiduciary duty and\\nprohibited transactions. She brought six counts against all\\nDefendants, and one count against the University. The first six\\ncounts alleged breaches of fiduciary duty in violation of 29\\nU.S.C. § 1104(a)(1) (Counts I, III, and V) and prohibited\\ntransactions in violation of 29 U.S.C. § 1106(a)(1) (Counts II,\\nIV, and VI). Sweda also alleged that the University failed to\\nadequately monitor its appointed fiduciaries in Count VII.\\n Penn moved to dismiss the complaint, and the District\\nCourt granted the motion. The court determined that Sweda\\nfailed to state a claim for fiduciary breach under Bell Atl. Corp.\\nv. Twombly, 550 U.S. 544 (2007) and Renfro v. Unisys Corp.,\\n671 F.3d 314 (3d Cir. 2011), because her factual allegations\\ncould also indicate rational conduct. As for the prohibited\\ntransaction claims, the court held that the service agreements\\n\\n\\n\\n\\n 6\\n\\ncould not constitute prohibited transactions without an\\nallegation that Penn had the subjective intent to benefit a party\\nin interest. The court dismissed Count VII after determining\\nthat it was duplicative of the claims at Counts I, III, and V.1\\nSweda now appeals.\\n II.\\n The District Court had jurisdiction under 28 U.S.C.\\n§ 1331 and 29 U.S.C. § 1132(e)(1) and (f). We have\\njurisdiction under 28 U.S.C. § 1291. We conduct plenary\\nreview of an order granting a motion to dismiss for failure to\\nstate a claim under Federal Rule of Civil Procedure (12)(b)(6).\\nRenfro, 671 F.3d at 320; Burtch v. Milberg Factors, Inc., 662\\nF.3d 212, 220 (3d Cir. 2011).\\n III.\\nA. Pleadings standards for claims brought under ERISA\\n The question in this case is whether Sweda stated a\\nclaim that should survive termination at the earliest stage in\\nlitigation. When a court grants a motion to dismiss a complaint\\nunder Rule 12(b)(6), it deprives a plaintiff of the benefit of the\\ncourt’s adjudication of the merits of its claim before the court\\nconsiders any evidence. That is why, in exercising our plenary\\nreview, we apply the same standard as the district court and\\nconstrue the complaint “in the light most favorable to the\\nplaintiff,” Santomenno ex rel. John Hancock Tr. v. John\\nHancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014)\\n(citation and internal quotation marks omitted), to determine\\n\\n 1\\n Sweda does not address the District Court’s dismissal\\nof Count VII in her opening brief. Therefore, the District\\nCourt’s dismissal of Count VII is not before us on appeal.\\nBarna v. Bd. of Sch. Dir. of the Panther Valley Sch. Dist., 877\\nF.3d 136, 145 (3d Cir. 2017).\\n\\n\\n\\n\\n 7\\n\\nwhether it “contain[s] sufficient factual matter, accepted as\\ntrue, to ‘state a claim to relief that is plausible on its face,’”\\nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.\\nCorp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]e disregard\\nrote recitals of the elements of a cause of action, legal\\nconclusions, and mere conclusory statements.” James v. City\\nof Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A claim\\n“has facial plausibility when the pleaded factual content allows\\nthe court to draw the reasonable inference that the defendant is\\nliable for the misconduct alleged.” Thompson v. Real Estate\\nMortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (citation and\\ninternal quotation marks omitted).\\n Here, the District Court held that Sweda’s complaint did\\nnot state a plausible claim, observing at various points in its\\nmemorandum that “[a]s in Twombly, the actions are at least\\n‘just as much in line with a wide swath of rational and\\ncompetitive business strategy’ in the market as they are with a\\nfiduciary breach.” Sweda v. Univ. of Pennsylvania, No. CV 16-\\n4329, 2017 WL 4179752, at *7, 8 (E.D. Pa. Sept. 21, 2017)\\n(quoting Twombly, 550 U.S. at 554). However, Twombly’s\\ndiscussion of alleged misconduct that is “just as much in line\\nwith a wide swath of rational and competitive business\\nstrategy” is specific to antitrust cases. 550 U.S. at 554. In an\\nantitrust case, “a conclusory allegation of agreement at some\\nunidentified point does not supply facts adequate to show\\nillegality,” therefore “when allegations of parallel conduct are\\nset out in order to make a § 1 claim, they must be placed in a\\ncontext that raises a suggestion of a preceding agreement, not\\nmerely parallel conduct that could just as well be independent\\naction.” Id. at 557.\\n One of our sister circuits has declined to extend\\nTwombly’s antitrust pleading rule to breach of fiduciary duty\\nclaims under ERISA because “[r]equiring a plaintiff to rule out\\n\\n\\n\\n\\n 8\\n\\nevery possible lawful explanation for the conduct he\\nchallenges would invert the principle that the complaint is\\nconstrued most favorably to the nonmoving party.” Braden v.\\nWal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009)\\n(citation and internal quotation marks omitted). We agree, and\\ndecline to extend Twombly’s antitrust pleading rule to such\\nclaims. To the extent that the District Court required Sweda to\\nrule out lawful explanations for Penn’s conduct, it erred.\\n We now turn to the task of evaluating Sweda’s\\ncomplaint. We progress in three steps: First, we will note the\\nelements of a claim; second, we will identify allegations that\\nare conclusory and therefore not assumed to be true, and; third,\\naccepting the factual allegations as true, we will view them and\\nreasonable inferences drawn from them in the light most\\nfavorable to Sweda to decide whether “they plausibly give rise\\nto an entitlement to relief.” Connelly v. Lane Constr. Corp.,\\n809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at\\n679).2 Pleadings that establish only a mere possibility of\\nmisconduct do not show entitlement to relief. Fowler, 578 F.3d\\nat 211.\\n In our evaluation of the complaint, we must account for\\nthe fact that Rule 8(a)(2), Twombly, and Iqbal operate with\\ncontextual specificity. Renfro, 671 F.3d at 321 (“[W]e must\\nexamine the context of a claim, including the underlying\\nsubstantive law, in order to assess its plausibility.”). Therefore,\\nERISA’s purpose informs our assessment of Sweda’s\\n\\n 2\\n We have also described this as a two-step analysis, but\\nthe task is the same. See Fowler v. UPMC Shadyside, 578 F.3d\\n203, 210-11 (3d Cir. 2009) (the court (1) separates factual and\\nlegal elements of a claim and takes the well-pleaded factual\\nallegations as true, and (2) determines whether those facts state\\na plausible claim for relief).\\n\\n\\n\\n\\n 9\\n\\npleadings. ERISA’s protective function is the focal point of the\\nstatute. The statute plainly states that ERISA is a response to\\n“the lack of employee information and adequate safeguards\\nconcerning [employee benefit plans’] operation,” and adds that\\nERISA reflects Congress’s desire “that disclosure be made and\\nsafeguards be provided with respect to the establishment,\\noperation, and administration of such plans.” 29 U.S.C.\\n§ 1001(a). This Court has repeatedly acknowledged and\\naffirmed ERISA’s protective function. See e.g. McCann v.\\nUnum Provident, 907 F.3d 130, 143 (3d Cir. 2018); Edmonson\\nv. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 413 (3d Cir. 2013);\\nNat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 81 (3d Cir. 2012).\\nERISA furthers “the national public interest in safeguarding\\nanticipated employee benefits” upon which individuals’\\nlivelihoods depend. Cutaiar v. Marshall, 590 F.2d 523, 529 (3d\\nCir. 1979).\\n ERISA also “represents a careful balancing between\\nensuring fair and prompt enforcement of rights under a plan\\nand the encouragement of the creation of such plans.” Fifth\\nThird Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2470 (2014)\\n(citations and internal quotation marks omitted); In re Unisys\\nSav. Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996) (ERISA\\n“protect[s] and strengthen[s] the rights of employees” and\\n“encourage[s] the development of private retirement plans.”).\\nPlan sponsors and fiduciaries have reliance interests in the\\ncourts’ interpretation of ERISA when establishing plan\\nmanagement practices. ERISA “‘induc[es] employers to offer\\nbenefits by assuring a predictable set of liabilities.’” Renfro,\\n671 F.3d at 321 (quoting Rush Prudential HMO, Inc. v. Moran,\\n536 U.S. 355, 379 (2002)). Both pursuits—participant\\nprotection and plan creation—are important considerations at\\nthe pleadings stage.\\n Two sections of the statute are particularly important to\\n\\n\\n\\n\\n 10\\n\\nthis appeal: the section outlining fiduciary duties, 29 U.S.C.\\n§ 1104, and the section prohibiting certain transactions, id.\\n§ 1106. Under § 1104(a), fiduciaries are held to the prudent\\nman standard of care,3 which is drawn from trust law. Tibble v.\\nEdison Int'l (Tibble III), 135 S. Ct. 1823, 1828 (2015); In re\\nUnisys, 74 F.3d at 434 (“Congress has instructed that section\\n1104 ‘in essence, codifies and makes applicable to …\\nfiduciaries certain principles developed in the evolution of the\\nlaw of trusts.’”) (quoting S. Rep. No. 127, 93 Cong., 2d Sess.\\n(1974)). Section 1104(a) lays the foundation of fiduciary duty,\\nand § 1106(a) “[s]upplement[s] that foundational obligation”\\nby “erect[ing] a categorical bar to transactions between the\\nplan and a ‘party in interest’ deemed likely to injure the plan.”\\nNat’l Sec. Sys., Inc., 700 F.3d at 82.\\n The standards for fiduciary conduct in §§ 1104 and\\n1106 may overlap. When evaluating whether there has been a\\nbreach of fiduciary duties under § 1104, courts may consider\\nthe administrator’s need to “defray[] reasonable expenses of\\nadministering [a] plan.” 29 U.S.C. § 1104(a)(1)(A)(ii). A\\nprohibited transactions claim under § 1106 might also involve\\nexpense-related transactions between a plan and party in\\ninterest. Id. § 1106(a)(1)(C). Despite the overlap, a fiduciary\\nwho breaches the duties under § 1104(a) does not necessarily\\nviolate § 1106(a). Because Sweda alleged that Penn breached\\nits fiduciary duties and caused the Plan to engage in prohibited\\ntransactions, we will first address claims under § 1104(a)(1)\\n\\n 3\\n The duties in § 1104(a) fully apply to all fiduciaries\\nexcept fiduciaries of Employee Stock Ownership Plans\\n(ESOPs). Fifth Third Bancorp, 134 S. Ct. at 2467. Neither\\nESOPs nor the fiduciary duties accompanying them are at issue\\nin this case.\\n\\n\\n\\n\\n 11\\n\\n(Counts I, III, and V), and then address her claims under\\n§ 1106(a)(1) (Counts II, IV, and VI).\\nB. Section 1104(a)(1) claims (Counts I, III, and V)\\n 1. Elements of a claim under § 1104(a)(1)\\n In reviewing the District Court’s dismissal of Sweda’s\\nfiduciary breach claims, our first task is to identify the elements\\nof such a claim. They are: “(1) a plan fiduciary (2) breaches an\\nERISA-imposed duty (3) causing a loss to the plan.” Leckey v.\\nStefano, 501 F.3d 212, 225–26 (3d Cir. 2007), as amended\\n(Dec. 21, 2007). Because the parties do not dispute that Penn\\nis a fiduciary or whether loss was adequately alleged, our focus\\nis whether Sweda adequately alleged that Penn breached its\\nfiduciary duties. A fiduciary must “discharge his duties with\\nrespect to a plan solely in the interest of the participants and\\nbeneficiaries . . . for the exclusive purpose of . . . providing\\nbenefits to participants and their beneficiaries; and . . .\\ndefraying reasonable expenses of administering the plan.” 29\\nU.S.C. § 1104(a)(1), (a)(1)(A). As explained above, fiduciaries\\nare held to the “prudent man” standard of care, which requires\\nfiduciaries to exercise “the care, skill, prudence, and diligence\\nunder the circumstances then prevailing that a prudent man\\nacting in a like capacity and familiar with such matters would\\nuse in the conduct of an enterprise of a like character and with\\nlike aims.” Id. § 1104(a)(1)(B). Fiduciaries are also required to\\ndiversify investments unless it would be imprudent,4 and to\\nadminister the plan according to governing documents and\\ninstruments. Id. § 1104(a)(1)(C), (D). Fiduciaries are\\npersonally liable for losses due to breach. Id. § 1109(a).\\n A fiduciary must prudently select investments, and\\n\\n 4\\n ESOP fiduciaries are exempted from the general duty\\nto diversify. Fifth Third Bancorp, 134 S. Ct. at 2467.\\n\\n\\n\\n\\n 12\\n\\nfailure to “monitor . . . investments and remove imprudent\\nones” may constitute a breach. See Tibble III, 135 S. Ct. at\\n1828-29; see also 29 C.F.R. § 2550.404a-1(b)(1)(i) (fiduciaries\\nmust give “appropriate consideration to those facts and\\ncircumstances that . . . the fiduciary knows or should know are\\nrelevant to the particular investment or investment course of\\naction involved”); see also Fink v. Nat’l Sav. & Trust Co., 772\\nF.2d 951, 957 (D.C. Cir. 1985) (“investigation of the merits of\\na particular investment is at the heart of the prudent person\\nstandard”). Fiduciaries must also understand and monitor plan\\nexpenses. “Expenses, such as management or administrative\\nfees, can sometimes significantly reduce the value of an\\naccount in a defined-contribution plan,” Tibble III, 135 S. Ct.\\nat 1826, by decreasing its immediate value, and by depriving\\nthe participant of the prospective value of funds that would\\nhave continued to grow if not taken out in fees. Recognizing\\nthe substantial impact of a fiduciary’s choice among fee\\noptions, the Ninth Circuit, in Tibble v. Edison Int’l (Tibble II),\\naffirmed the district court’s finding that the plan fiduciary’s\\ninclusion of retail class shares of three funds when institutional\\nclass shares of the same funds were available for 24 to 40 fewer\\nbasis points, was a fiduciary breach. 729 F.3d 1110, 1137-39\\n(9th Cir. 2013), vacated on other grounds, 135 S. Ct. 1823\\n(2015).\\n Cognizant of the impact of fees on Plan value,\\nfiduciaries should be vigilant in “negotiation of the specific\\nformula and methodology” by which fee payments such as\\n“revenue sharing will be credited to the plan and paid back to\\nthe plan or to plan service providers.” DOL Advisory Opinion\\n\\n\\n\\n\\n 13\\n\\n2013-03A, 2013 WL 3546834, at *4.5 Fiduciaries must also\\nconsider a plan’s “power . . . to obtain favorable investment\\nproducts, particularly when those products are substantially\\nidentical—other than their lower cost—to products the trustee\\nhas already selected.” Tibble v. Edison Int’l (Tibble IV), 843\\nF.3d 1187, 1198 (9th Cir. 2016). See Tibble II, 729 F.3d at 1137\\nn.24 (common knowledge that investment minimums are often\\nwaived for large plans). When expenses are paid from plan\\nassets, fiduciaries must ensure that the assets are used “for the\\nexclusive purpose of providing benefits to participants and\\nbeneficiaries and defraying reasonable expenses of\\nadministering the plan.” DOL Advisory Opinion 2001-01A,\\n2001 WL 125092, at *1. See 29 U.S.C. § 1104(a)(1)(A).\\n Bearing these fiduciary duties in mind, a court assesses\\n\\n 5\\n Under ERISA Procedure 76-1 § 10, only the parties\\ndescribed in a request for a DOL advisory opinion may rely on\\nthe opinion, and only to the extent that the problem is fully and\\naccurately described in the request. Advisory Op. Procedure,\\n41 Fed. Reg. 36281-02 (August 27, 1976). The opinions do not\\nhave precedential effect. “Because of the nature and limitations\\nof these rulings,” the Supreme Court declined to “express [a]\\nview as to whether they are or are not entitled to deference” in\\nComm'r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 162 n.3\\n(1993). Such advisory opinions are likely “entitled to respect”\\nto the extent that they have the “power to persuade” under the\\nSupreme Court’s decision in Skidmore v. Swift & Co., 323 U.S.\\n134, 140 (1944). Christensen v. Harris Cty., 529 U.S. 576, 587\\n(2000) (citations omitted). See e.g. Caremark, Inc. v. Goetz,\\n480 F.3d 779, 790 (6th Cir. 2007) (deference to DOL advisory\\nopinion was warranted because of the opinion’s persuasive\\nforce and its consistency with federal and state law and\\nregulations).\\n\\n\\n\\n\\n 14\\n\\na fiduciary’s performance by looking at process rather than\\nresults, “focusing on a fiduciary's conduct in arriving at [a] . . .\\ndecision . . . and asking whether a fiduciary employed the\\nappropriate methods to investigate and determine the merits of\\na particular investment.” In re Unisys, 74 F.3d at 434 (citations\\nomitted). A fiduciary’s process must bear the marks of loyalty,\\nskill, and diligence expected of an expert in the field. It is not\\nenough to avoid misconduct, kickback schemes, and bad-faith\\ndealings. The law expects more than good intentions. “[A] pure\\nheart and an empty head are not enough.” DiFelice v. U.S.\\nAirways, Inc., 497 F.3d 410, 418 (4th Cir. 2007) (quoting\\nDonovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir.\\n1983)). Many allegations concerning fiduciary conduct, such\\nas reasonableness of “compensation for services” are\\n“inherently factual question[s]” for which neither ERISA nor\\nthe Department of Labor give specific guidance. DOL\\nAdvisory Opinion 2013-03A, 2013 WL 3546834, at *4-5.\\n In Renfro, we established the pleading standard for\\nbreach of fiduciary duty under ERISA after examining the\\nreasoning of other Circuits that had addressed the issue in light\\nof Twombly and Iqbal, particularly Hecker v. Deere & Co., 556\\nF.3d 575 (7th Cir. 2009), and Braden v. Wal–Mart Stores, Inc.,\\n588 F.3d 585 (8th Cir. 2009). The Renfro plaintiffs challenged\\nthe mix and range of investment options in their retirement\\nplan, the use of asset-based rather than per-participant fees, and\\nthe alleged imbalance of the fees charged and services\\nrendered. 671 F.3d at 326. The district court granted\\ndefendants’ motion to dismiss, holding that “the plan offered a\\nsufficient mix of investments . . . [such] that no rational trier of\\nfact could find, on the basis of the facts alleged in the operative\\ncomplaint, that the . . . defendants breached an ERISA\\nfiduciary duty by offering [that] particular array of investment\\nvehicles.” Id. at 320 (citations and internal quotation marks\\n\\n\\n\\n\\n 15\\n\\nomitted).\\n We affirmed. Id. at 327-28. We determined that we\\ncould not “infer from what [was] alleged that the [fiduciary’s]\\nprocess was flawed.” Id. at 327 (quoting Braden, 588 F.3d at\\n596). We held that ERISA plans should offer meaningful\\nchoices to their participants, and that:\\n [T]he range of investment options\\n and the characteristics of those\\n included options—including the\\n risk profiles, investment strategies,\\n and associated fees—are highly\\n relevant and readily ascertainable\\n facts against which the plausibility\\n of claims challenging the overall\\n composition of a plan's mix and\\n range of investment options should\\n be measured.\\nId. We explained that a fiduciary breach claim must be\\nexamined against the backdrop of the mix and range of\\navailable investment options. Id. We did not hold, however,\\nthat a meaningful mix and range of investment options\\ninsulates plan fiduciaries from liability for breach of fiduciary\\nduty. Such a standard would allow a fiduciary to avoid liability\\nby stocking a plan with hundreds of options, even if the\\nmajority were overpriced or underperforming. One important\\nreason why we cannot read Renfro to establish such a bright-\\nline rule (that providing a range of investment options satisfies\\na fiduciary’s duty) is that ERISA fiduciaries have a duty to act\\nprudently according to current practices—as the statute puts it,\\nthe “circumstances then prevailing.” 29 U.S.C.\\n§ 1104(a)(1)(B). Practices change over time, and bright line\\nrules would hinder courts’ evaluation of fiduciaries’\\n\\n\\n\\n\\n 16\\n\\nperformance against contemporary industry practices. Bearing\\nthese things in mind, we turn to Sweda’s complaint to\\ndetermine whether she adequately alleged fiduciary breach in\\nCounts I, III, and V.\\n 2. Conclusory allegations of fiduciary breach\\n First, we must eliminate conclusory allegations from the\\ncomplaint. Connelly, 809 F.3d at 787. Sweda included a few\\nconclusory allegations, such as “a prudent process would have\\nproduced a different outcome,” Am. Compl. ¶75, but\\nconclusory statements of that variety are rare in the complaint,\\nand after discarding them, many well-pleaded factual\\nallegations remain.\\n 3. Well-pleaded facts alleging breach of fiduciary duty\\n Sweda alleged that Penn was “responsible for hiring\\nadministrative service providers, such as a recordkeeper, and\\nnegotiating and approving those service providers’\\ncompensation.” Am. Compl. ¶36. She also alleged that Penn\\nwas responsible for the menu of investment options available\\nto participants. Id. In Count I, she alleged that Penn entered a\\n“lock-in” agreement with TIAA-CREF that mandated\\ninclusion of the CREF Stock and Money Market accounts, and\\nrequired the Plan to use TIAA-CREF as a recordkeeper. Am.\\nCompl. ¶86.\\n In Count III, Sweda alleged that Penn paid excessive\\nadministrative fees, failed to solicit bids from service\\nproviders, failed to monitor revenue sharing, failed to leverage\\nthe Plan’s size to obtain lower fees or rebates, and failed to\\ncomprehensively review Plan management. Specifically,\\nSweda alleged that the Plan paid between $4.5 and $5.5 million\\nin annual recordkeeping fees at a time when similar plans paid\\n$700,000 to $750,000 for the same services. Sweda also\\nalleged that percentage-based fees went up as assets grew,\\n\\n\\n\\n\\n 17\\n\\ndespite there being no corresponding increase in recordkeeping\\nservices. Sweda alleged that Penn could have negotiated for a\\ncap on fees or renegotiated the fee structure, but failed to do\\neither. Sweda also alleged that Penn could have assessed the\\nreasonableness of Plan recordkeeping fees by soliciting\\ncompetitive bids, but, unlike prudent fiduciaries, failed to do\\nso. For contrast, Sweda offered examples of similarly situated\\nfiduciaries who acted prudently, such as fiduciaries at Loyola\\nMarymount who hired an independent consultant to request\\nrecordkeeping proposals and consolidated services with a\\nsingle provider. Sweda pointed to similar moves at Pepperdine,\\nPurdue, and CalTech, as well as Caltech’s negotiation for $15\\nmillion in revenue sharing rebates. Sweda alleged that unlike\\nthose organizations, Penn failed to review Plan management,\\nand fell behind other fiduciaries in the industry.\\n In Count V, Sweda alleged that Penn breached its\\nfiduciary duties by: paying unreasonable investment fees,\\nincluding and retaining high-cost investment options with\\nhistorically poor performance compared to available\\nalternatives, and retaining multiple options in the same asset\\nclass and investment style. Specifically, Sweda alleged that\\ndespite the availability of low-cost institutional class shares,\\nPenn selected and retained identically managed but higher cost\\nretail class shares. She included a table comparing options in\\n\\n\\n\\n\\n 18\\n\\nthe Plan with the readily available cheaper alternatives.6 Sweda\\nalso alleged that some options in the line-up had layers of\\nunnecessary fees. Not only did Sweda allege that the options\\nPenn selected and retained were imprudently costly, she also\\nalleged that they were duplicative thereby decreasing the value\\nof actively managed funds, reducing the Plan’s leverage, and\\nconfusing participants. Sweda also alleged that 60% of Plan\\noptions underperformed appropriate benchmarks, and that\\nPenn failed to remove underperformers. Sweda pointed to the\\nCREF Stock Account and TIAA Real Estate Account as\\nexamples of consistent underperformers. She alleged that\\nPenn’s process of selecting and managing options must have\\nbeen flawed if Penn retained expensive underperformers over\\n\\n 6\\n Most of the investment options Sweda criticized in her\\ncomplaint were designated as Tier 3 and Tier 4 options. Sweda\\nalso criticized Tier 2 options such as the TIAA-CREF\\nInternational Equity Index Fund, listed in Sweda’s table\\ncomparing Plan options with their “lower-cost, but otherwise\\nidentical” alternatives. Sweda confirmed that criticized options\\nfell under Tiers 2, 3, and 4 at oral argument. Oral Arg. at 7:33.\\nAt this time we do not address whether Penn may be able to\\nassert a defense to liability under 29 U.S.C. § 1104(c) due to\\nparticipants’ self-directed investing activity. The § 1104(c)\\nsafe harbor defense is an affirmative defense and therefore it is\\ngenerally not part of a court’s consideration of a motion to\\ndismiss under Rule 12(b)(6), except where the defense has\\nbeen anticipated by a plaintiff’s complaint. Hecker, 556 F.3d\\nat 588 (citing In re Unisys, 74 F.3d at 446 for the classification\\nof § 1104(c) as an affirmative defense). Unlike the plaintiffs in\\nHecker who explicitly and “thoroughly anticipated” the safe\\nharbor defense, Sweda did not “put it in play” at the pleadings\\nstage. Id.\\n\\n\\n\\n\\n 19\\n\\nbetter performing, cheaper alternatives. At this stage, her\\nfactual allegations must be taken as true, and every reasonable\\ninference from them must be drawn in her favor. Connelly, 809\\nF.3d at 790.\\n 4. Sweda plausibly stated a claim in Counts III and V\\n At this final step, we employ a holistic approach,\\nconsidering all of Sweda’s well-pleaded factual allegations\\nincluding the range of investment options alongside other\\ngermane factors such as reasonableness of fees, selection and\\nretention of investment options, and practices of similarly\\nsituated fiduciaries, to determine whether her allegations\\nplausibly demonstrate entitlement to relief. See Renfro, 671\\nF.3d at 327; see also Braden, 588 F.3d at 598 (statute’s\\nremedial scheme “counsel[s] careful and holistic evaluation of\\nan ERISA complaint’s factual allegations before concluding\\nthat they do not support a plausible inference that the plaintiff\\nis entitled to relief.”). The complaint should not be “parsed\\npiece by piece to determine whether each allegation, in\\nisolation, is plausible.” Braden, 588 F.3d at 594. See Tatum v.\\nRJR Pension Inv. Comm., 761 F.3d 346, 360 (4th Cir. 2014)\\n(citing DiFelice, 497 F.3d at 420) (courts must look to the\\ntotality of the circumstances to assess the prudence of\\ninvestment decisions).\\n Sweda plausibly alleged breach of fiduciary duty.\\nSweda’s factual allegations are not merely “unadorned, the-\\ndefendant-unlawfully-harmed-me accusation[s].” Iqbal, 556\\nU.S. at 678. As recounted above, they are numerous and\\nspecific factual allegations that Penn did not perform its\\nfiduciary duties with the level of care, skill, prudence, and\\ndiligence to which Plan participants are statutorily entitled\\nunder § 1104(a)(1). Sweda offered specific comparisons\\nbetween returns on Plan investment options and readily\\n\\n\\n\\n\\n 20\\n\\navailable alternatives, as well as practices of similarly situated\\nfiduciaries to show what plan administrators “acting in a like\\ncapacity and familiar with such matters would [do] in the\\nconduct of an enterprise of a like character and with like aims.”\\n29 U.S.C. § 1104(a)(1)(B).7 The allegations plausibly allege\\nthat Penn failed to “defray[] reasonable expenses of\\nadministering the plan” and otherwise failed to “discharge [its]\\nduties” according to the prudent man standard of care. Id.\\n§ 1104(a)(1)(A)(ii) and (B).\\n Other appellate courts have found that similar conduct\\nplausibly indicates breach of fiduciary duty. For instance, in\\nTussey v. ABB, Inc., the Eighth Circuit held that the district\\ncourt did not err in finding fiduciaries breached their duties by\\n“[failing to] (1) calculate the amount the Plan was paying [the\\nrecordkeeper] for recordkeeping through revenue sharing, (2)\\ndetermine whether [the recordkeeper’s] pricing was\\ncompetitive, [or] (3) adequately leverage the Plan's size to\\nreduce fees,” among other things. 746 F.3d 327, 336 (8th Cir.\\n\\n 7\\n Sweda also directly compared fees on options included\\nin the Plan with readily available lower-cost options. The\\ndissent suggests that because the range of fees on options\\nincluded in the Plan is lower than the range of challenged fees\\nin Renfro, Sweda needed to allege a change in market\\ncircumstances since Renfro was decided to state a plausible\\nclaim. In making that suggestion, the dissent misses the object\\nof our inquiry, that is, Penn’s “conduct in arriving at an\\ninvestment decision.” In re Unisys, 74 F.3d at 434 (citations\\nomitted). To that end, the allegations in Sweda’s complaint\\nshow that Penn frequently selected higher cost investments\\nwhen identical lower-cost investments were available. This is\\none of many allegations that, together, plausibly allege that\\nPenn breached its fiduciary duty.\\n\\n\\n\\n\\n 21\\n\\n2014). In Tibble IV, the Ninth Circuit held that whether a\\nfiduciary breached its fiduciary duties by selecting a higher\\ncost share class was an issue requiring development by the\\ndistrict court, and remanded the case for further proceedings.\\n843 F.3d at 1197-98.\\n In dismissing the claims in Counts III and V, the District\\nCourt erred by “ignor[ing] reasonable inferences supported by\\nthe facts alleged,” and by drawing “inferences in [Defendants’]\\nfavor, faulting [Plaintiffs] for failing to plead facts tending to\\ncontradict those inferences.” Braden, 588 F.3d at 595. While\\nSweda may not have directly alleged how Penn mismanaged\\nthe Plan, she provided substantial circumstantial evidence from\\nwhich the District Court could “reasonably infer” that a breach\\nhad occurred. Pension Benefit Guar. Corp. ex rel. St. Vincent\\nCatholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.\\nInc., 712 F.3d 705, 718 (2d Cir. 2013) (citation and internal\\nquotation marks omitted). Based on her allegations, the claims\\nin Counts III and V should not have been dismissed.\\n Penn argues that allowing Sweda to proceed on this\\ncomplaint ignores fiduciary discretion, and also argues that it\\nin fact employed a prudent process in its Plan management.\\nFinally, Penn argues that reversal would overexpose ERISA\\nfiduciaries to liability. According to Penn, ERISA fiduciaries\\nare “afforded a healthy measure of discretion in deciding what\\nis in the plan participants’ interests.” Br. of Appellees at 2. At\\noral argument, Penn emphasized fiduciary discretion, calling it\\nthe “hallmark of fiduciary activity.” Oral Arg. at 25:05. Penn\\nis not incorrect that the exercise of discretionary authority over\\nplan assets is a characteristic of fiduciaries such that courts can\\nidentify fiduciaries by this trait, see Pohl v. Nat'l Benefits\\nConsultants, Inc., 956 F.2d 126, 129 (7th Cir. 1992), nor is\\nPenn incorrect that discretion is an important aspect of\\nfiduciary behavior that the courts should consider in evaluating\\n\\n\\n\\n\\n 22\\n\\nfiduciary performance. ERISA fiduciaries, like trustees, are\\nafforded discretion because “[t]here are no universally\\naccepted and enduring theories of financial markets or\\nprescriptions for investment that can provide clear and specific\\nguidance,” therefore “[v]aried approaches to the prudent\\ninvestment” of assets are permissible. Restatement (Third) of\\nTrusts § 90 (2007), cmt. f.\\n However, while fiduciaries have discretion in plan\\nmanagement, that discretion is bounded by the prudent man\\nstandard. Discretion “does not mean . . . that the legal standard\\nof prudence is without substantive content or that there are no\\nprinciples by which the fiduciary's conduct may be guided and\\njudged,” rather a fiduciary’s conduct at all times “must be\\nreasonably supported in concept and must be implemented\\nwith proper care, skill, and caution.” Id. Fiduciary discretion\\nmust be exercised within the statutory parameters of prudence\\nand loyalty. See DOL Advisory Op. 2006-08A, 2006 WL\\n2990326, at *3. Those parameters impose a fiduciary standard\\nthat is considered “the highest known to the law.” Tatum, 761\\nF.3d at 355–56 (quoting Donovan v. Bierwirth, 680 F.2d 263,\\n272 n.8 (2d Cir. 1982)). See Varity Corp. v. Howe, 516 U.S.\\n489, 497 (1996) (ERISA fiduciary duty may even exceed\\nfiduciary duty as derived from the common law of trusts).\\nTherefore, while we recognize and appreciate fiduciary\\ndiscretion, if there is indeed a “hallmark” of fiduciary activity\\nidentified in the statute, it is prudence. See 29 U.S.C. § 1104(a).\\n As to Penn’s second argument, that it did in fact employ\\na prudent process, this argument goes to the merits and is\\nmisplaced at this early stage. Although Penn may be able to\\ndemonstrate that its process was prudent, we are not permitted\\nto accept Penn’s account of the facts or draw inferences in\\nPenn’s favor at this stage of litigation. Finally, we address\\nPenn’s argument, supported by amici including the American\\n\\n\\n\\n\\n 23\\n\\nCouncil on Education and the Chamber of Commerce of the\\nUnited States of America8, that allowing Sweda’s complaint\\nthrough the 12(b)(6) gate will overexpose plan sponsors and\\nfiduciaries to costly litigation and will discourage them from\\noffering benefit plans at all. Br. of Appellees at 38. Penn\\npredicts that reversal would “give class action lawyers a free\\nticket to discovery and the opportunity to demand extortionate\\nsettlements.” Id.9 Penn’s solution is to interpret Renfro to mean\\nthat if a plan fiduciary provides a “mix and range of investment\\noptions,” plaintiffs cannot plausibly allege breach of fiduciary\\n\\n 8\\n As well as the American Association of State Colleges\\nand Universities (AASCU), Association of American\\nUniversities (AAU), Association of Community College\\nTrustees (ACCT), Association of Public and Land Grant\\nUniversities (APLU), College and University Professional\\nAssociation for Human Resources (CUPA-HR), Council of\\nIndependent Colleges (CIC), National Association of\\nIndependent Colleges and Universities (NAICU), and the\\nAmerican Benefits Council.\\n 9\\n The dissent also expresses concern that reversal will\\noverexpose university sponsors and volunteer fiduciaries to\\nclass action claims designed to yield large settlements and\\nsignificant attorneys’ fees. The dissent fears that universities\\nwill be less likely to offer benefit plans and fiduciaries less\\nlikely to volunteer their services. If that is the case, we should\\nleave it to Congress to address the possibility of a different\\nfiduciary standard that is suitable to the goal of inducing\\nuniversities to offer plans and would-be fiduciaries to\\nvolunteer. As it stands, ERISA fiduciaries are held to one\\nstandard under § 1104 and we cannot adjust our pleadings\\nstandards to accommodate subcategories of sponsors and\\nfiduciaries.\\n\\n\\n\\n\\n 24\\n\\nduty.\\n The Supreme Court addressed a nearly identical\\nconcern in Fifth Third Bancorp. There, the defendants\\n“[sought] relief from what they believe[d were] meritless,\\neconomically burdensome lawsuits.” 134 S. Ct. at 2470. The\\nCourt explained that while Congress, through ERISA, sought\\nto encourage creation of retirement plans, that purpose was not\\nintended to prevent participants with meritorious claims from\\ngaining access to the courts. Id. While Fifth Third concerned\\nan ESOP plan and defendants’ request for a presumption of\\nprudence, its reasoning is apt here. Despite our appreciation of\\nPenn and amici’s fear of frivolous litigation, if we were to\\ninterpret Renfro to bar a complaint as detailed and specific as\\nthe complaint here, we would insulate from liability every\\nfiduciary who, although imprudent, initially selected a “mix\\nand range” of investment options. Neither the statute nor our\\nprecedent justifies such a rule. We will therefore reverse the\\nDistrict Court’s dismissal of the claims in Counts III and V,\\nand remand for further proceedings.10\\n\\n 10\\n The dissent argues that we ought to affirm the District\\nCourt’s dismissal of Count V for Sweda’s want of\\nconstitutional standing under Edmonson v. Lincoln Nat’l Life\\nIns. Co., 725 F.3d 406 (3d Cir. 2013). The dissent argues that\\nbecause Sweda conceded that most of the underperforming\\noptions are in Tiers 3 and 4, the plaintiffs should have included\\ninformation about whether they invested in Tier 3 or Tier 4\\noptions in the complaint. In the dissent’s view, plaintiffs’\\nfailure to include that information constitutes a failure to allege\\nan injury in fact. However, while the complaint does not\\nidentify plaintiffs’ investment options by tier, it does contain\\nfacts that indicate that the named plaintiffs invested in the\\nunderperforming investment options. In a paragraph entitled\\n\\n\\n\\n\\n 25\\n\\n“Standing” in the complaint, Sweda included the following\\ninformation:\\n\\n To the extent the Plaintiffs must\\n also show an individual injury . . .\\n each Plaintiff has suffered such an\\n injury, in at least the following\\n ways . . . The named Plaintiffs’\\n individual accounts in the Plan\\n were further harmed by\\n Defendants’ breaches of fiduciary\\n duties because one or more of the\\n named Plaintiffs during the\\n proposed class period (1) invested\\n in underperforming options\\n including the CREF Stock and\\n TIAA Real Estate accounts[.]\\n\\n App. 36-37. This allegation links the named plaintiffs\\nwith the underperforming investment options and is sufficient\\nto show individual injuries.\\n In light of the dissent’s point on constitutional standing,\\nwe should address the issue as it pertains to participants and\\nbeneficiaries who bring a civil action against fiduciaries under\\n29 U.S.C. § 1132(a)(2). The dissent cites this Court’s decision\\nin Perelman v. Perelman, where we held that participants in a\\ndefined benefit plan could not show actual injury for\\nconstitutional standing for an § 1132(a)(3) claim by pointing\\nto a “diminution of plan assets” because such participants are\\nentitled to a fixed periodic payment rather than part of the asset\\npool. 793 F.3d 368, 374 (3d Cir. 2015). We also noted that\\n“[t]here is no question that representative suits by plan\\n\\n\\n\\n\\n 26\\n\\n We will affirm dismissal of Count I because it is time\\nbarred. Fairview Twp. v. U.S. Envtl. Prot. Agency, 773 F.2d\\n517, 525 n.15 (3d Cir. 1985) (we may affirm on any basis).\\nSweda limited her claim to the initial agreement between the\\nPlan and TIAA-CREF to include the CREF Stock and Money\\nMarket accounts in the Plan, and to use TIAA-CREF for\\nrecordkeeping. This agreement was entered into prior to\\nDecember 31, 2009, and Sweda filed her initial complaint on\\nAugust 10, 2016. Sweda did not present this claim as an\\nongoing breach like the petitioners in Tibble III, 135 S. Ct.\\n1823. Although we must draw every reasonable inference in\\nSweda’s favor, we will not read factual allegations into a\\ncomplaint. Count I is therefore time barred under the six-year\\nstatute of limitations. 29 U.S.C. § 1113(1).11\\n\\n\\nparticipants or beneficiaries against fiduciaries for breach of\\nfiduciary duty are permitted by, and generally brought under,\\nERISA § [1132(a)(2)].” Id. at 376 n.6. This case implicates the\\nlatter part of our observation in Perelman because Sweda\\nbrought this suit under § 1132(a)(2) on behalf of the Plan.\\n 11\\n No action may be commenced under this subchapter\\nwith respect to a fiduciary's breach of any responsibility, duty,\\nor obligation under this part, or with respect to a violation of\\nthis part, after the earlier of--\\n (1) six years after (A) the date of the last action which\\n constituted a part of the breach or violation, or (B) in the\\n case of an omission the latest date on which the fiduciary\\n could have cured the breach or violation, or\\n (2) three years after the earliest date on which the plaintiff\\n had actual knowledge of the breach or violation;\\nexcept that in the case of fraud or concealment, such action\\nmay be commenced not later than six years after the date of\\ndiscovery of such breach or violation. 29 U.S.C. § 1113.\\n\\n\\n\\n\\n 27\\n\\nC. Section 1106(a)(1) claims (Counts II, IV, and VI)\\n 1. Elements of a claim under § 1106(a)(1)\\n Section 1106(a) supplements the fiduciary duties by\\nspecifically prohibiting certain transactions between plans and\\nparties in interest. The elements of a party-in-interest,\\nprohibited transaction claim are: (1) the fiduciary causes (2) a\\nlisted transaction to occur (3) between the plan and a party in\\ninterest. 29 U.S.C. § 1106(a)(1). ERISA defines “party in\\ninterest” as “a person providing services to such plan.” 29\\nU.S.C. § 1002(14)(B). Sweda argues that TIAA-CREF and\\nVanguard are parties in interest according to the plain language\\nof § 1002(14)(B). She also points to a Department of Labor\\nadvisory opinion holding that a life insurance company that\\nprovided recordkeeping and related services to a retirement\\nplan would be a party in interest under the statute. See DOL\\nAdvisory Opinion 2013-03A, 2013 WL 3546834. Importantly,\\nan investment company does not become a party in interest\\nmerely because a plan invests in securities issued by the\\ninvestment company. 29 U.S.C. § 1002(21)(B).\\n Fiduciaries are prohibited from causing a plan to engage\\nin the transactions listed at § 1106(a)(1). Those transactions\\nare:\\n (A) sale or exchange, or leasing, of\\n any property between the plan and\\n a party in interest; (B) lending of\\n money or other extension of credit\\n between the plan and a party in\\n interest; (C) furnishing of goods,\\n services, or facilities between the\\n plan and a party in interest; (D)\\n transfer to, or use by or for the\\n benefit of a party in interest, of any\\n\\n\\n\\n\\n 28\\n\\n assets of the plan; or (E)\\n acquisition, on behalf of the plan,\\n of any employer security or\\n employer real property in violation\\n of section 1107(a) of this title.\\nBetween the definition of service providers as parties in\\ninterest, id. § 1002(14)(B), and this exhaustive list of\\nprohibited transactions, § 1106(a)(1) could be read to have an\\nextremely broad application. Some courts have embraced that\\nbreadth and interpreted § 1106(a)(1) to prohibit almost any\\ntransaction with a party in interest. The Seventh Circuit, for\\nexample, has held that § 1106(a)(1) creates a per se rule against\\nparty in interest transactions, so that plaintiffs who allege such\\ntransactions may do so without even pleading\\nunreasonableness of fees. Allen v. GreatBanc Trust Co., 835\\nF.3d 670, 676 (7th Cir. 2016). In Allen, the Seventh Circuit\\nruled that the exemptions from prohibited transactions, under\\n29 U.S.C. § 1108, are affirmative defenses, and that\\n“plaintiff[s] ha[ve] no duty to negate any or all of them” in a\\ncomplaint. Id. It also noted that five other circuits (the Second,\\nFourth, Fifth, Eighth, and Ninth) have ruled similarly. Id. See\\nBraden, 588 F.3d at 600-01 (plaintiff did not have to plead\\nfacts “raising a plausible inference that the payments were\\nunreasonable” because exemption in § 1108 is a defense raised\\nby defendant). Responding to concerns about a flood of\\nprohibited transaction claims, the Seventh Circuit reasoned\\nthat Rule 11 sanctions and reasonable risk aversion would\\nprevent the floodgates from opening. Allen, 835 F.3d at 677.\\n We decline to read § 1106(a)(1) as the Seventh Circuit\\ndoes because it is improbable that § 1106(a)(1), which was\\ndesigned to prevent “transactions deemed likely to injure the .\\n. . plan” and “self-dealing,” Nat’l Sec. Sys., Inc., 700 F.3d at 92\\n(citation and internal quotation marks omitted), would prohibit\\n\\n\\n\\n\\n 29\\n\\nubiquitous service transactions and require a fiduciary to plead\\nreasonableness as an affirmative defense under § 1108 to avoid\\nsuit. Not even Sweda advocates for such a broad reading of\\n§ 1106(a)(1), conceding in her complaint that “paying for\\nrecordkeeping with asset-based revenue sharing is not [a] per\\nse violation of ERISA.” Am. Compl. ¶101. One of the reasons\\nwe do not find Allen persuasive is that the transactions the\\nSeventh Circuit scrutinized in Allen were a far cry from the\\nordinary service arrangements at issue here. In Allen, an ESOP\\nfiduciary bought the employer’s stock using a loan financed by\\nthe principal shareholders of the company. The value of the\\nstock then fell so drastically that “[t]he Plan’s participants, all\\nemployees of [the company], wound up being on the hook for\\ninterest payments on the loan.” Allen, 835 F.3d at 673. A\\ntransaction of that variety is far removed from ordinary\\nrecordkeeping arrangements. Therefore, Allen does not\\nprovide sufficient justification to recognize a per se rule that\\nevery furnishing of goods or services between a plan and party\\nin interest is a prohibited transaction under § 1106(a)(1).\\n Our ruling today does not conflict with our earlier\\ndecisions holding that transactions between a plan and plan\\nfiduciaries are per se prohibited under § 1106(b). See Cutaiar,\\n590 F.2d at 528; see also Nat’l Sec. Sys., Inc., 700 F.3d at 94.\\nIn Cutaiar, we held that “[w]hen identical trustees of two\\nemployee benefit plans whose participants and beneficiaries\\nare not identical effect a loan between the plans without a\\n[§ 1108] exemption, a per se violation of ERISA exists” under\\n§ 1106(b)(2). 590 F.2d at 529. In National Security Systems,\\nwe held that a transaction between a plan and fiduciary that is\\ntainted by self-dealing is a per se violation of § 1106(b)(3)\\n“regardless of the reasonableness of compensation.” 700 F.3d\\nat 93. Those cases do not control here because § 1106(a) and\\n(b) have distinct purposes: “[s]ubsection (a) erects a\\n\\n\\n\\n\\n 30\\n\\ncategorical bar to transactions between the plan and a ‘party in\\ninterest’ deemed likely to injure the plan,” and “[s]ubsection\\n(b) prohibits plan fiduciaries from entering into transactions\\nwith the plan tainted by conflict-of-interest and self-dealing\\nconcerns.” Id. at 82. The protective function of ERISA is at its\\nheight in the latter scenario when there is a risk of fiduciary\\nself-dealing. The instances where participants might benefit\\nfrom a transaction between a plan and a fiduciary are so rare\\nthat they can be prohibited outright.\\n Reading § 1106(a)(1) as a per se rule barring all\\ntransactions between a plan and party in interest would miss\\nthe balance that Congress struck in ERISA, because it would\\nexpose fiduciaries to liability for every transaction whereby\\nservices are rendered to the plan. See Renfro, 671 F.3d at 321\\n(“In enacting ERISA, Congress ‘resolved innumerable\\ndisputes between powerful competing interests—not all in\\nfavor of potential plaintiffs.’” (quoting Mertens v. Hewitt\\nAssocs., 508 U.S. 248, 262 (1993))). Additionally, if we\\ninterpreted § 1106(a)(1) to prohibit every transaction for\\nservices to a plan, we would have to ignore other parts of the\\nstatute. For instance, ERISA specifically acknowledges that\\ncertain services are necessary to administer plans. See 29\\nU.S.C. § 1104(a)(1)(A)(ii). Interpreting § 1106(a)(1) to\\nprohibit necessary services would be absurd, and when one\\ninterpretation of a statute leads to an absurd result, we may\\nconsider an alternative interpretation that avoids the absurdity.\\nThorpe v. Borough of Jim Thorpe, 770 F.3d 255, 263 (3d Cir.\\n2014) (quoting First Merchants Acceptance Corp. v. J.C.\\nBradford & Co., 198 F.3d 394, 402 (3d Cir. 1999)). Therefore\\nwe decline to interpret § 1106(a)(1) as prohibiting per se the\\n“furnishing of goods [or] services,” 29 U.S.C. § 1106(a)(1)(C),\\nby all “person[s] providing services to [the] plan,” id.\\n\\n\\n\\n\\n 31\\n\\n§ 1002(14)(B).12\\n The Supreme Court similarly avoided absurdity in its\\ninterpretation of § 1106(a)(1) in Lockheed Corp. (addressing\\nwhether the administrator of a plan could condition payment\\non performance by participants). The Court held that payments\\nof benefits to a participant, which under a hyper-literal reading\\nof the statute could be understood as “a transfer to, or use by\\nor for the benefit of a party in interest, of any assets of the\\nplan,” 29 U.S.C. § 1106(a)(1)(D), was not a prohibited\\ntransaction. Lockheed Corp., 517 U.S. at 892-93. The Supreme\\nCourt rejected the hyper-literal reading because it would have\\nbeen absurd and illogical in the context of the statute. Id. The\\nCourt went through the subsections of § 1106(a)(1), listing the\\ndifferent statutorily prohibited transactions, and explained that\\nthey follow a common thread: they are all “commercial\\nbargains that present a special risk of plan underfunding\\nbecause they are struck with plan insiders, presumably not at\\narm’s length.” Id. at 893. The Court distinguished payment of\\nplan benefits because they “cannot reasonably be said to share\\nthat characteristic.” Id.\\n We have interpreted § 1106(a)(1)(D) similarly, holding\\nthat a violation occurs when: (1) a fiduciary, (2) causes a plan\\nto engage in a transaction, (3) that uses plan assets, (4) for the\\n\\n 12\\n Moreover, § 1106(a) was not designed to prevent\\nnegotiation between unaffiliated parties. See Lockheed Corp.\\nv. Spink, 517 U.S. 882, 893 (1996). Thus, if a service provider\\nhas no prior relationship with a plan before entering a service\\nagreement, the service provider is not a party in interest at the\\ntime of the agreement. As explained herein, it only becomes a\\nparty in interest after the initial transaction occurs, and\\nsubsequent transactions are not prohibited absent self-dealing\\nor disloyal conduct.\\n\\n\\n\\n\\n 32\\n\\nbenefit of a party in interest, and (5) “the fiduciary ‘knows or\\nshould know’ that elements three and four are satisfied.” Reich\\nv. Compton, 57 F.3d 270, 278 (3d Cir. 1995). In Reich, we held\\nthat specific intent is required because of the plain meaning of\\nthe statutory phrase “for the benefit,” and also because if\\n§ 1106(a)(1)(D) did not require “subjective intent to benefit a\\nparty in interest, [it] would produce unreasonable\\nconsequences that we feel confident Congress could not have\\nwanted.” Id. at 279.\\n The Supreme Court’s identification of the common\\nthread in § 1106(a)(1), a special risk to the plan from a\\ntransaction presumably not at arm’s length—and its\\ndetermination that transactions that do not share that common\\nthread are permissible—as well as our interpretation of\\n§ 1106(a)(1)(D), represent a more harmonious way to interpret\\nthe prohibited transactions listed in § 1106(a)(1) in the context\\nof the statute as a whole. The element of intent to benefit a\\nparty in interest effects the purpose of § 1106(a)(1), which is\\nto rout out transactions that benefit such parties at the expense\\nof participants. Section 1106(a)(1) is not meant to impede\\nnecessary service transactions, but rather transactions that\\npresent legitimate risks to participants and beneficiaries such\\nas “securities purchases or sales by a plan to manipulate the\\nprice of the security to the advantage of a party-in-interest.”\\nLeigh v. Engle, 727 F.2d 113, 127 (7th Cir. 1984) (quoting H.R.\\nConf. Rep. No. 1280, 93rd Cong., 2d Sess. 308) (alteration\\nomitted). We therefore hold that absent factual allegations that\\nsupport an element of intent to benefit a party in interest, a\\nplaintiff does not plausibly allege that a “transaction that\\nconstitutes a direct or indirect . . . furnishing of goods, services,\\nor facilities between the plan and a party in interest” prohibited\\nby § 1106(a)(1)(C) has occurred. Requiring plaintiffs to allege\\nfacts supporting this element avoids absurdity in interpreting\\n\\n\\n\\n\\n 33\\n\\nthe statute.\\n 2. Conclusory and well-pleaded factual allegations of\\n prohibited transactions\\n The factual allegations that Sweda included in her\\ncomplaint to support her claims for prohibited transactions\\noverlap with the allegations supporting her fiduciary breach\\nclaims. Besides the allegations recounted above, Sweda\\nalleged that revenue sharing was “kicked back” to TIAA-\\nCREF for recordkeeping associated with TIAA-CREF options.\\nAm. Compl. ¶109. She alleged that Penn “allowed TIAA’s\\nfinancial interest to dictate the Plan’s investment selections and\\nrecordkeeping arrangement.” Am. Compl. ¶87. She also\\nalleged that Penn failed to act in the exclusive interest of\\nparticipants, instead “serv[ing] TIAA-CREF’s and Vanguard’s\\nfinancial interests” with decisions such as “allowing TIAA-\\nCREF and Vanguard to put their proprietary investments in the\\nPlan without scrutinizing those providers’ financial interest.”\\nAm. Compl. ¶¶112, 200. These general allegations about\\nkickbacks and prioritizing TIAA-CREF and Vanguard’s\\nfinancial interests over the participant and beneficiaries’\\nfinancial interests are largely conclusory, but we also consider\\nwell-pleaded factual allegations summarized at § III.B.3 that\\nare relevant to Sweda’s prohibited transaction claims.\\n 3. Sweda failed to plausibly state a claim under Counts\\n II, IV, and VI\\n Looking at the totality of the allegations in the\\ncomplaint, taken as true, Connelly, 809 F.3d at 787, Sweda\\nfailed to state a plausible claim for prohibited transactions in\\nCounts II, IV, and VI.\\n a. Count II\\n In Count II, Sweda alleged that a prohibited transaction\\n\\n\\n\\n\\n 34\\n\\noccurred when Penn allowed TIAA-CREF to require inclusion\\nof CREF Stock and Money Market accounts among the Plan’s\\ninvestment options and agreed to TIAA-CREF recordkeeping\\nservices, pursuant to a “lock-in” agreement. Am. Compl. ¶193.\\nTwo of Sweda’s prohibited transaction claims emanate from\\nthis agreement: (1) that a prohibited transaction occurred at the\\ntime of the initial agreement, and (2) that a prohibited\\ntransaction occurred every time fees were later paid pursuant\\nto the agreement. As to the initial agreement, Sweda did not\\nsufficiently allege that TIAA-CREF was a party in interest at\\nthat time: she included no allegation that TIAA-CREF was\\n“providing services to [the] plan,” 29 U.S.C. § 1002(14)(B).\\nBecause Sweda failed to allege that TIAA-CREF was a party\\nin interest at the time of the “lock-in,” that element is factually\\nunsupported, and she failed to state a claim for the first alleged\\nprohibited transaction in Count II. Sweda’s second claim in\\nCount II that prohibited transactions occurred every time\\nproperty was exchanged or services were rendered pursuant to\\nthe “lock-in” agreement is so closely related to Count IV\\n(payment of recordkeeping fees) that we will address these\\nclaims together.\\n b. Counts II and IV\\n In Counts II and IV, Sweda alleged that Penn caused the\\nPlan to enter prohibited transactions when it caused the Plan to\\npay administrative fees to TIAA-CREF and Vanguard. Sweda\\nplausibly alleged that TIAA-CREF and Vanguard were parties\\nin interest under § 1002(14)(B) because they provided services\\nto the plan at the time fees were paid, and Penn’s own Plan\\nmaterials identify TIAA-CREF and Vanguard as parties in\\ninterest. At the pleadings stage, we must assume that this well-\\npleaded fact is true. Next we look to whether Penn caused the\\nPlan to enter a prohibited transaction with TIAA-CREF or\\nVanguard for administrative fees. Sweda alleged that the\\n\\n\\n\\n\\n 35\\n\\nadministrative fee payments constituted prohibited\\ntransactions under § 1106(a)(1) in three ways: (1) they were\\nprohibited transfers of property under § 1106(a)(1)(A), (2) they\\nwere transfers of assets under subsection (D), and (3) they\\nconstituted furnishing of services under subsection (C). We\\nfirst address whether Sweda plausibly alleged that\\nadministrative fee payment by revenue sharing constituted a\\ntransfer of property under (A) or Plan assets under (D).\\n Sweda alleged that administrative fees were paid by\\nrevenue sharing. Am. Compl. ¶¶ 46, 110 (Vanguard is\\n“compensated for recordkeeping services based on internal\\nrevenue sharing it receives from the Vanguard Investor share\\nclass mutual funds.”). She also alleged that investment fees\\nwere drawn from mutual fund assets. Am. Compl. ¶44.\\n(“Mutual fund fees are usually expressed as a percentage of\\nassets under management . . . [t]he fees deducted from a mutual\\nfund’s assets . . .”). Mutual fund assets are distinct from Plan\\nassets, because, under the statute, assets of “a plan which\\ninvests in any security issued by an investment company” do\\nnot “include any assets of such investment company.” 29\\nU.S.C. § 1101(b)(1). See Hecker, 556 F.3d at 584 (With\\nsupport from the Department of Labor, defendants\\ndemonstrated that revenue sharing fees did not impinge plan\\nassets because they were drawn from the assets of mutual\\nfunds). Therefore, Sweda did not plausibly allege that revenue\\nsharing involved a transfer of Plan property or assets under\\n§ 1106(a)(1)(A) or (D), and furthermore, Sweda did not\\nplausibly allege that Penn had subjective intent to benefit a\\nTIAA-CREF or Vanguard by a use or transfer of Plan assets,\\nwhich, under our precedent, is required to state a claim under\\n§ 1106(a)(1)(D). Reich, 57 F.3d at 279.\\n Finally, we must address whether a prohibited\\ntransaction occurred under § 1106(a)(1)(C), the prohibition of\\n\\n\\n\\n\\n 36\\n\\n“furnishing of goods, services, or facilities between the plan\\nand a party in interest.” As we explained above, it is possible\\nto read subsection (C) to create a per se prohibited transaction\\nrule forbidding service arrangements between a plan and a\\nparty rendering services to the plan. However, because reading\\n§ 1106(a)(1)(C) to that end would be absurd, Sweda must plead\\nan element of intent to benefit the party in interest. After\\nstriking conclusory allegations, such as “Defendants served\\nTIAA-CREF’s and Vanguard’s financial interests” (Am.\\nCompl. ¶112) from the complaint, we do not find that Sweda\\nalleged facts showing that Penn intended to benefit TIAA-\\nCREF or Vanguard. We will affirm the dismissal of Sweda’s\\nclaims for prohibited transactions under Counts II and IV.\\n c. Count VI\\n At Count VI, Sweda alleged that Penn caused the Plan\\nto engage in prohibited transactions when it caused the Plan to\\npay investment fees to TIAA-CREF and Vanguard. For similar\\nreasons that Sweda did not plausibly allege prohibited\\ntransactions in Counts II and IV, she also failed to plausibly\\nallege prohibited transactions in Count VI. First, Sweda did not\\nplausibly allege that payment of investment fees constituted a\\nprohibited transaction under § 1106(a)(1)(A), because Sweda\\nalleged that investment fees were drawn from mutual fund\\nassets, not Plan assets. Second, for the same reason, investment\\nfees were not plausibly alleged to be a transfer of assets of the\\nPlan under § 1106(a)(1)(D). Third, Sweda did not allege that\\nPenn intended to benefit TIAA-CREF or Vanguard under\\n§ 1106(a)(1)(D), as required by our precedent. Reich, 57 F.3d\\nat 279. Finally, as we explained above in our discussion of\\nCounts II and IV, in order to state a claim for prohibited\\ntransactions under § 1106(a)(1)(C), “furnishing goods,\\nservices, or facilities between the plan and a party in interest,”\\na plaintiff must allege intent to benefit a party in interest.\\n\\n\\n\\n\\n 37\\n\\nSweda failed to do so. Therefore, we will affirm the dismissal\\nof the claim for prohibited transactions under Count VI.\\n IV.\\n Sweda plausibly alleged that Penn failed to conform to\\nthe high standard required of plan fiduciaries under 29 U.S.C.\\n§ 1104(a)(1). However, she did not plausibly allege that Penn\\ncaused the Plan to enter prohibited transactions under\\n§ 1106(a)(1). We therefore will REVERSE the portion of the\\nDistrict Court’s order granting the Appellees’ motion to\\ndismiss Counts III and V and remand for further proceedings.\\nWe will AFFIRM the District Court’s order dismissing Counts\\nI, II, IV, VI, and VII.\\n\\n\\n\\n\\n 38\\n\\n Sweda v. 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4,614,818 | Michael Wade NANCE, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee. | Michael Wade Nance v. Warden, Georgia Diagnostic Prison | 2019-04-30 | 17-15361 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Tjoflat, Pryor", "parties": "", "opinions": [{"author": "ED CARNES, Chief Judge", "type": "010combined", "text": "Case: 17-15361 Date Filed: 04/30/2019 Page: 1 of 19\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COUR... | CARNES | TJOFLAT | PRYOR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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4,614,819 | Jose Candido Diaz PALENCIA, Petitioner - Appellee, v. Marilis Yaneth Velasquez PEREZ, Respondent - Appellant. | Jose Candido Diaz Palencia v. Marilis Yaneth Velasquez Perez | 2019-04-30 | 18-14122 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Jordan, Newsom, Branch", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "Case: 18-14122 Date Filed: 04/30/2019 Page: 1 of 19\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED... | JORDAN | NEWSOM | BRANCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,860 | SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, Al B. Hill, Interested Party-Appellee, v. James A. TORCHIA, Credit Nation Capital, LLC, Credit Nation Acceptance, LLC, Credit Nation Auto Sales, LLC, American Motor Credit, LLC, Et Al., Defendants, Richard Sutherland, Katherine Sutherland, Interested Parties-Appel... | Securities and Exchange Commissioner v. James A. Torchia | 2019-04-30 | 17-13650; 17-13651 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Wilson, Jordan, Moore", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "Case: 17-13650 Date Filed: 04/30/2019 Page: 1 of 24\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT... | WILSON | JORDAN | MOORE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614860/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,861 | Securities and Exchange Commission v. James A. Torchia | 2019-04-30 | 17-13651 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILSON and JORDAN, Circuit Judges, and MOORE, District Judge.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "Case: 17-13651 Date Filed: 04/30/2019 Page: 1 of 24\n\n\n [PUBLIS... | WILSON | JORDAN | MOORE | 1 | {"WILSON": ", Circuit", "JORDAN": ", Circuit", "MOORE": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614861/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,605,646 | Damien GUEDES, Et Al., Appellants v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Et Al., Appellees | Guedes v. Bureau of Alcohol, Tobacco, Firearms | 2019-04-01 | 19-5042; C/w 19-5044 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Henderson, Srinivasan, Millett", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 22, 2019 Decided April 1, 2019\n\n No. 19-5042\n\n ... | HENDERSON | SRINIVASAN | MILLETT | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605646/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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4,607,344 | Damien Guedes v. ATF | 2019-04-01 | 19-5042 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: HENDERSON, SRINIVASAN and MILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 22, 2019 Decided April 1, 2019\n\n ... | HENDERSON | SRINIVASAN | MILLETT | 1 | {"HENDERSON": ", Circuit", "SRINIVASAN": ", Circuit", "MILLETT": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607344/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,335,963 | Jorie WIMBISH v. DISTRICT OF COLUMBIA | Wimbish v. Dist. of Columbia | 2019-04-03 | No. 15-cv-1429 (EGS) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Introduction, Sullivan", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253883/", "author_raw": ""}]} | SULLIVAN | SULLIVAN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335963/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
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4,607,342 | Stuart A. MCKEEVER, Appellant v. William P. BARR, Attorney General, Appellee | Stuart McKeever v. William Barr | 2019-04-05 | 17-5149 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Srinivasan, Katsas, Ginsburg", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888322/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/... | SRINIVASAN | KATSAS | GINSBURG | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607342/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,343 | Daryl Thomas AGNEW, Et Al., Appellants v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Appellee | Daryl Agnew v. Government of the District of Columbia | 2019-04-05 | 17-7114 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Tatel, Pillard, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge PILLARD", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued September 5, 2018 Decided April 5, 2019\n\n ... | TATEL | PILLARD | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607343/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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4,608,071 | Stuart McKeever v. William Barr | 2019-04-05 | 17-5149 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: SRINIVASAN and KATSAS, Circuit Judges, and GINSBURG, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge GINSBURG.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nAr... | SRINIVASAN | KATSAS | GINSBURG | 1 | {"SRINIVASAN": ", Circuit", "KATSAS": ", Circuit", "GINSBURG": ", Senior Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608071/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,335,319 | FRIENDS OF ANIMALS v. Ryan ZINKE, in his official capacity as Secretary of the United States Department of Interior, and Safari Club International, Defendant-Intervenors | Friends Animals v. Zinke | 2019-04-08 | Case No. 17-cv-2530-RCL | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253239/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335319/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,608,068 | UNITED STATES of America, Appellee v. Caleb GRAY-BURRISS, Appellant | United States v. Caleb Gray-Burriss | 2019-04-09 | 17-3031 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Griffith, Wilkins", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Chief Judge GARLAND", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nSubmitted November 13, 2018 Decided April 9, 2019\n\n ... | GARLAND | GRIFFITH | WILKINS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608068/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,608,069 | Gordon Reid v. Hugh J. Hurwitz (ORDER) | 2019-04-09 | 17-5012 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "BEFORE: Katsas, Circuit Judge ORDER Upon consideration of apellant’s motion to correct record, it is ORDERED that the dissenting opinion be amended as follows: Slip op.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n ... | KATSAS | KATSAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608069/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||
4,608,070 | Gordon Reid v. Hugh J. Hurwitz (AMENDED OPINION) | 2019-04-09 | 17-5012 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GRIFFITH, WILKINS and KATSAS, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued May 17, 2018 Deci... | GRIFFITH | WILKINS | KATSAS | 1 | {"GRIFFITH": ", Circuit", "WILKINS": ", Circuit", "KATSAS": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608070/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,608,349 | National Lifeline Association v. FCC (ORDER) | 2019-04-10 | 18-1026 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "BEFORE: Rogers and Griffith, Circuit Judges; Randolph, Senior Circuit Judge ORDER Upon consideration of the unopposed motion of the FCC to amend opinion, it is ORDERED that the opinion issued February 1, 2019, be amended as follows: Slip Op.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "01... | ROGERS | GRIFFITH | RANDOLPH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608349/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,608,350 | National Lifeline Association v. FCC (AMENDED OPINION) | 2019-04-10 | 18-1026 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: ROGERS and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "Opinion for the court filed by Circuit Judge ROGERS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October... | ROGERS | GRIFFITH | RANDOLPH | 1 | {"ROGERS": ", Circuit", "GRIFFITH": ", Circuit", "RANDOLPH": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608350/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,609,719 | OCEANA, INC., Appellant v. Wilbur ROSS, in His Official Capacity as Secretary of the United States Department of Commerce, Et Al., Appellees | Oceana, Inc. v. Wilbur Ross | 2019-04-12 | 17-5247 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Tatel, Wilkins, Katsas", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 22, 2018 Decided April 12, 2019\n\n ... | TATEL | WILKINS | KATSAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609719/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,609,720 | John DOE, 1 and John Doe, 2, Appellants v. FEDERAL ELECTION COMMISSION, Appellee | John Doe v. Fed. Election Comm'n | 2019-04-12 | 18-5099 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Henderson, Randolph", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge RANDOLPH.", "type": "010combined", "text": "PUBLIC COPY - SEALED INFORMATION DELETED\n\n\n nitt $ttti (!Inurt of jajnt1\n FOR THE DISTRICT OF COLUMBIA CIRC... | GARLAND | HENDERSON | RANDOLPH | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609720/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,335,388 | CONSERVATION LAW FOUNDATION v. Wilbur ROSS, in his official capacity as Secretary of the United States Department of Commerce | Conservation Law Found. v. Ross | 2019-04-15 | Civil Action No. 18-1105 (JEB) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253308/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335388/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,610,415 | UNITED STATES of America, Appellee v. John Wayne SCANTLEBURY, Also Known as Frederick Davis, Also Known as John Wayne Trotman, Appellant | United States v. Scantlebury | 2019-04-16 | 18-3043; C/w 18-3044 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Pillard, Katsas, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge EDWARDS.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued February 7, 2019 Decided April 16, 2019\... | PILLARD | KATSAS | EDWARDS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610415/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,416 | In RE: Abd Al-Rahim Hussein Muhammed AL-NASHIRI, Petitioner in Re: Mary E. Spears and Rosa A. Eliades, Petitioners | In re: Mary E. Spears and Rosa A. Eliades | 2019-04-16 | 18-1279; 18-1315 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Tatel, Griffith", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge TATEL", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued January 22, 2019 Decided April 16, 2019\n\n ... | ROGERS | TATEL | GRIFFITH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610416/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,223 | ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF JUSTICE | Elec. Frontier Found. v. Dep't of Justice | 2019-04-17 | No. 17-cv-1039 (DLF) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Friedrich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254143/", "author_raw": ""}]} | FRIEDRICH | FRIEDRICH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336223/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,611,851 | UPS GROUND FREIGHT, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Brotherhood of Teamsters Local Union No. 773, Intervenor | UPS Ground Freight, Inc. v. N.L.R.B. | 2019-04-19 | 18-1161; C/w 18-1182 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Srinivasan, Randolph", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge SRINIVASAN", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 21, 2019 Decided April 19, 2019\... | GARLAND | SRINIVASAN | RANDOLPH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611851/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,611,852 | Daniel BARKER, Appellant v. Patrick CONROY, Chaplain, Et Al., Appellees | Daniel Barker v. Patrick Conroy | 2019-04-19 | 17-5278 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Tatel, Edwards, Ginsburg", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge TATEL", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 18, 2018 Decided April 19, 2019\n\n ... | TATEL | EDWARDS | GINSBURG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611852/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,140 | NATURAL RESOURCES DEFENSE COUNCIL, INC. v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY | Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency | 2019-04-19 | Civil Action No. 17-1243 (RDM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Moss", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254060/", "author_raw": ""}]} | MOSS | MOSS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336140/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,336,141 | Shalom GOLDSTEIN v. ISLAMIC REPUBLIC OF IRAN | Goldstein v. Islamic Republic Iran | 2019-04-19 | Case No. 16-cv-2507 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Cooper", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254061/", "author_raw": ""}]} | COOPER | COOPER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336141/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,344,426 | TINGZI WANG v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES | Tingzi Wang v. U.S. Citizenship & Immigration Servs. | 2019-04-19 | Civil Action No. 16-1965 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8312863/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8344426/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
7,336,039 | United States v. Floyd CLARK | United States v. Clark | 2019-04-22 | Criminal No. 10-0133 (PLF); Civil Action. No. 15-0493 (PLF) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Friedman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253959/", "author_raw": ""}]} | FRIEDMAN | FRIEDMAN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336039/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,336,142 | BEACH TV PROPERTIES INC. v. Henry A. SOLOMON | Beach TV Props. Inc. v. Solomon | 2019-04-22 | Civil Action No.: 15-1823 (RC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254062/", "author_raw": ""}]} | CONTRERAS | CONTRERAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336142/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,398 | UNITED STATES of America, Appellee v. ORAL GEORGE THOMPSON, Also Known as Chad, Appellant | United States v. Oral Thompson | 2019-04-23 | 17-3060; C/w 17-3061 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: GARLAND, Chief Judge, MILLETT, Circuit Judge, and SILBERMAN, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge SILBERMAN.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\... | GARLAND | MILLETT | SILBERMAN | 1 | {"GARLAND": ", Chief", "MILLETT": ", Circuit", "SILBERMAN": ", Senior Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612398/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,399 | State of New York v. EPA | 2019-04-23 | 17-1273 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: WILKINS and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge RANDOLPH.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgue... | WILKINS | KATSAS | RANDOLPH | 1 | {"WILKINS": ", Circuit", "KATSAS": ", Circuit", "RANDOLPH": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612399/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,400 | AIR TRANSPORT ASSOCIATION OF AMERICA, INC., D/B/A Airlines for America, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent Port of Portland, Intervenor | Air Transport Association of America, Inc. v. Faa | 2019-04-23 | 18-1157 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Tatel, Randolph", "parties": "", "opinions": [{"author": "Opinion for the Court by Circuit Judge ROGERS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued February 14, 2019 Decided April 23, 2019\n\n ... | ROGERS | TATEL | RANDOLPH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612400/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,958 | State of NEW YORK v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, in His Official Capacity as Acting Administrator of the U.S. Environmental Protection Agency, Commonwealth of Kentucky Energy and Environment Cabinet, Intervenors | New York v. E.P.A. | 2019-04-23 | No. 17-1273 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Katsas, Randolph, Wilkins", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415390/", "author_raw": ""}]} | KATSAS | RANDOLPH | WILKINS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443958/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,040 | Z.B., a minor, BY AND THROUGH his mother, Sylvia SANCHEZ v. The DISTRICT OF COLUMBIA | Z.B. v. Dist. of Columbia | 2019-04-25 | Civil Action No. 18-87 (CKK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kollar, Kotelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253960/", "author_raw": ""}]} | KOLLAR | KOLLAR | KOTELLY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336040/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,613,967 | ENVIRONMENTAL DEFENSE FUND, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, United States Environmental Protection Agency, Respondents American Chemistry Council, Et Al., Intervenors | Environmental Defense Fund v. Envtl. Prot. Agency | 2019-04-26 | 17-1201 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Millett, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge MILLETT", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 12, 2018 Decided April 26, 2019\n\n ... | GARLAND | MILLETT | EDWARDS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613967/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,613,968 | COMMONWEALTH LAND TITLE INSURANCE COMPANY, Appellant v. KCI TECHNOLOGIES, INC. and Wiles Mensch Corporation, Appellees | Commonwealth Land Title Ins. v. KCI Technologies, Inc. | 2019-04-26 | 18-7051 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Garland, Tatel, Wilkins", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 1, 2018 Decided April 26, 2019\n\n ... | GARLAND | TATEL | WILKINS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613968/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,336,225 | Anatol ZUKERMAN v. UNITED STATES POSTAL SERVICE | Zukerman v. U.S. Postal Serv. | 2019-04-26 | Case No. 15-cv-2131 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254145/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336225/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
7,336,226 | Dan HARDWAY v. CENTRAL INTELLIGENCE AGENCY | Hardway v. Cent. Intelligence Agency | 2019-04-28 | Civil Action No. 17-1433 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254146/", "author_raw": ""}]} | KELLY | KELLY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336226/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
7,336,227 | ROCKY MOUNTAIN HEALTH MAINTENANCE ORGANIZATION, INC. v. Alex M. AZAR, II | Rocky Mountain Health Maint. Org., Inc. v. Azar | 2019-04-29 | Case No. 17-cv-00242 (APM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254147/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336227/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
7,336,400 | AMERICAN OVERSIGHT v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY | Oversight v. U.S. Envtl. Prot. Agency | 2019-04-29 | Civil Action No. 18-364 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7254320/", "author_raw": ""}]} | KELLY | KELLY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7336400/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,788 | The ROBARE GROUP, LTD., Et Al., Petitioners v. SECURITIES AND EXCHANGE COMMISSION, Respondent | The Robare Group, LTD. v. SEC | 2019-04-30 | 16-1453 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Millett, Katsas", "parties": "", "opinions": [{"author": "Opinion for the court by Circuit Judge ROGERS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued January 23, 2019 Decided April 30, 2019\n\n ... | ROGERS | MILLETT | KATSAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614788/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,789 | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee | Citizens for Responsibility and Ethics in Washington v. DOJ | 2019-04-30 | 18-5116 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Henderson, Pillard, Ginsburg", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued December 4, 2018 Decided April 30, 2019\n\n No. 18-5116\n\n CITIZENS FOR RESP... | HENDERSON | PILLARD | GINSBURG | 1 | {} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614789/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
7,335,329 | Senator Richard BLUMENTHAL v. Donald J. TRUMP, in His Official Capacity as President of the United States | Blumenthal v. Trump | 2019-04-30 | Civil Action No. 17-1154 (EGS) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Sullivan", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253249/", "author_raw": ""}]} | SULLIVAN | SULLIVAN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335329/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,605,917 | VETERANS CONTRACTING GROUP, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee | Veterans Contracting Group, Inc. v. United States | 2019-04-02 | 2018-1409 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, Dyk, Hughes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888302/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinio... | LOURIE | DYK | HUGHES | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605917/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,388 | ABB, INC., Plaintiff-Appellee v. UNITED STATES, Defendant-Appellee Hyosung Corporation, HICO America Sales and Technology, Inc., Defendants v. Hyundai Heavy Industries Co., LTD., Hyundai Corporation, USA, Defendants-Appellants | Abb, Inc. v. United States | 2019-04-05 | 2018-1300 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Schall, Stoll", "parties": "", "opinions": [{"author": "SCHALL, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ABB, INC.,\n Plaintiff-Appellee\n\n ... | MOORE | SCHALL | STOLL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607388/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,702 | OMEGA PATENTS, LLC, Plaintiff-Appellee v. CALAMP CORP., Defendant-Appellant | Omega Patents, LLC v. Calamp Corp. | 2019-04-08 | 2018-1309 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Dyk, Wallach", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n OMEGA PATENTS, LLC,\n Plaintiff-Appellee\n\n ... | PROST | DYK | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607702/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,608,072 | IRWIN INDUSTRIAL TOOL COMPANY, Plaintiff-Appellee v. UNITED STATES, Defendant-Appellant | Irwin Industrial Tool Company v. United States | 2019-04-09 | 2018-1215 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, Mayer, Reyna", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n IRWIN INDUSTRIAL TOOL COMPANY,\n Plaintiff-Appellee\n\n ... | LOURIE | MAYER | REYNA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608072/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,608,455 | In Re: Siny Corp. | 2019-04-10 | 18-1077 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, LOURIE and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "PROST, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n IN RE: SINY CORP.,\n ... | PROST | LOURIE | STOLL | 1 | {"PROST": ", Chief", "LOURIE": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608455/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,609,058 | ATI TECHNOLOGIES ULC, Appellant v. Andrei IANCU, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor | Ati Technologies Ulc v. Iancu | 2019-04-11 | 2016-2222; 2016-2406; 2016-2608 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Newman, O'Malley, Wallach", "parties": "", "opinions": [{"author": "NEWMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ATI TECHNOLOGIES ULC,\n Appellant\n\n ... | NEWMAN | O'MALLEY | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609058/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,126 | John B. SCOTT, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee | Scott v. Wilkie | 2019-04-15 | 2018-1535 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Newman, O'Malley, Taranto", "parties": "", "opinions": [{"author": "O'MALLEY, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n JOHN B. SCOTT,\n Claimant-Appellant\n\n ... | NEWMAN | O'MALLEY | TARANTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610126/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,807 | E.I. DU PONT DE NEMOURS & COMPANY, Plaintiff-Appellee v. UNIFRAX I LLC, Defendant-Appellant | E.I. Du Pont De Nemours & Co. v. Unifrax I LLC | 2019-04-17 | 2017-2575 | U.S. Court of Appeals for the Federal Circuit | {"judges": "O'Malley, Reyna, Hughes", "parties": "", "opinions": [{"author": "REYNA, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n E.I. DU PONT DE NEMOURS & COMPANY,\n Plaintiff-Appellee\n\n ... | O'MALLEY | REYNA | HUGHES | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610807/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,611,257 | TRADING TECHNOLOGIES INTERNATIONAL, INC., Appellant v. IBG LLC, Interactive Brokers, LLC, Appellees United States, Intervenor Trading Technologies International, Inc., Appellant v. IBG LLC, Interactive Brokers LLC, Appellees United States, Intervenor Trading Technologies International, Inc., Appellant v. IBG LLC, Inter... | Trading Technologies Int'l v. Ibg LLC | 2019-04-18 | 2017-2257; 2017-2621; 2018-1063 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Linn, Mayer, Moore", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n TRADING TECHNOLOGIES INTERNATIONAL,\n INC.,\n Appell... | LINN | MAYER | MOORE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611257/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,611,896 | VERSATOP SUPPORT SYSTEMS, LLC, Plaintiff-Appellant v. GEORGIA EXPO, INC., Defendant-Appellee | Versatop Support Systems v. Georgia Expo, Inc. | 2019-04-19 | 2018-1208 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Newman, Linn, Dyk", "parties": "", "opinions": [{"author": "NEWMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n VERSATOP SUPPORT SYSTEMS, LLC,\n Plaintiff-Appellant\n\n ... | NEWMAN | LINN | DYK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611896/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,401 | Jack SUCIC, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee | Sucic v. Wilkie | 2019-04-23 | 2018-1486 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Reyna, Wallach", "parties": "", "opinions": [{"author": "PROST, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n JACK SUCIC,\n Claimant-Appellant\n\n ... | PROST | REYNA | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612401/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,613,526 | Samuel E. GINSBURG, Joan A. Ginsburg, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee | Ginsburg v. United States | 2019-04-25 | 2018-1788 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Reyna, Wallach", "parties": "", "opinions": [{"author": "WALLACH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SAMUEL E. GINSBURG, JOAN A. GINSBURG,\n Plaintiffs-Appellants\n\n... | PROST | REYNA | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613526/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,613,969 | VIRGIN ISLANDS PORT AUTHORITY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee | Virgin Islands Port Authority v. United States | 2019-04-26 | 2018-1698 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Mayer, Clevenger", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n VIRGIN ISLANDS PORT AUTHORITY,\n Plaintiff-Appellant\n\n ... | DYK | MAYER | CLEVENGER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613969/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,012 | NEPTUNE GENERICS, LLC, Fresenius Kabi USA, LLC, Appellants v. ELI LILLY & COMPANY, Appellee Mylan Laboratories Limited, Fresenius Kabi USA, LLC, Appellants v. Eli Lilly & Company, Appellee | Neptune Generics, LLC v. Eli Lilly & Company | 2019-04-26 | 2018-1257; 2018-1258; 2018-1288; 2018-1290 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Wallach, Hughes", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n NEPTUNE GENERICS, LLC, FRESENIUS KABI\n USA, LLC,\n ... | MOORE | WALLACH | HUGHES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614012/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,431 | RUBIES COSTUME COMPANY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee | Rubies Costume Company v. United States | 2019-04-29 | 2018-1305 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Reyna, Hughes", "parties": "", "opinions": [{"author": "REYNA, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n RUBIES COSTUME COMPANY,\n Plaintiff-Appellant\n\n ... | PROST | REYNA | HUGHES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614431/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,790 | TRADING TECHNOLOGIES INTERNATIONAL, INC., Appellant v. IBG LLC, Interactive Brokers LLC, Appellees United States, Intervenor | Trading Techs. Int'l, Inc. v. Ibg LLC | 2019-04-30 | 2017-2323 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Moore, Clevenger, Wallach", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n TRADING TECHNOLOGIES INTERNATIONAL,\n INC.,\n ... | MOORE | CLEVENGER | WALLACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614790/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,615,721 | UNITED STATES of America, Appellee, v. Randy CHARRIEZ-ROLÓN, Defendant, Appellant. | United States v. Charriez-Rolon | 2019-05-01 | 17-1123P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lipez, Thompson", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1123\n\n UNITED STATES OF AMERICA,\n\n Ap... | TORRUELLA | LIPEZ | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615721/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,616,231 | Commonwealth of MASSACHUSETTS, Plaintiff, Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; Alex Michael Azar II, in His Official Capacity as Secretary of Health and Human Services; United States Department of the Treasury; Steven T. Mnuchin, in His Official Capacity as Secretary of the Treasury ; Un... | Commonwealth of MA v. Dep't of Health & Human Servs. | 2019-05-02 | 18-1514P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lynch, Thompson", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-1514\n\n COMMONWEALTH OF MASSACHUSETTS,\n\n Plaintif... | TORRUELLA | LYNCH | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616231/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,102 | UNITED STATES of America, Appellee, v. Barry DAVIS, Defendant, Appellant. | United States v. Davis | 2019-05-06 | 17-2100P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Lipez, Katzmann", "parties": "", "opinions": [{"author": "LIPEZ, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2100\n\n UNITED STATES OF AMERICA,\n\n Appellee,... | LYNCH | LIPEZ | KATZMANN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617102/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,103 | UNITED STATES of America; State of California; State of Colorado; State of Connecticut; State of Delaware; District of Columbia; State of Florida; State of Georgia; State of Hawaii; State of Illinois; State of Indiana; State of Iowa; State of Louisiana; State of Maryland; Commonwealth of Massachusetts; State of Michiga... | McGuire v. Estate of Robert Cunningham | 2019-05-06 | 17-1106P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lynch, Thompson", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1106\n\n UNITED STATES OF AMERICA; STATE OF CALIFORNIA; STATE OF\n COLORADO; STATE OF CONNE... | TORRUELLA | LYNCH | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617103/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,829 | Erika D. LUCEUS, Plaintiff, Appellant, v. State of RHODE ISLAND; Rhode Island Department of Labor and Training, Defendants, Appellees, Robert Langlais ; Kathy Catanzaro; Rose Lemoine; Jessica Johnson; Jason Bliss Wohlers, Defendants. | Luceus v. State of Rhode Island | 2019-05-08 | 18-1377P | U.S. Court of Appeals for the First Circuit | {"judges": "Thompson, Souter, Lipez", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\nNo. 18-1377\n\n ERIKA D. LUCEUS,\n\n Plaintiff, Appellant,\n\n ... | THOMPSON | SOUTER | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617829/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,042 | Miguel ROMAN, Petitioner, Appellant, v. Lisa A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee. | Roman v. Mitchell | 2019-05-13 | 18-1979P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1979\n\n MIGUEL ROMAN,\n\n Petitioner, Appellant... | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619042/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,043 | Gina CROSSETTI, as Personal Representative of the Estate of Robert A. Crossetti, Jr., Plaintiff, Appellant, v. CARGILL, INCORPORATED, Defendant, Appellee. | Crossetti v. Cargill, Incorporated | 2019-05-13 | 18-1622P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lynch, Kayatta", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1622\n\n GINA CROSSETTI, as Personal Representative of the Estate of\n ... | TORRUELLA | LYNCH | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619043/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,619,837 | Abinel ZENON, Plaintiff, Appellant, v. Associate Justice Margaret GUZMAN, in Her Official Capacity, Defendant, Appellee. | Zenon v. Guzman | 2019-05-15 | 18-1119P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Thompson, Barron", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1119\n\n ABINEL ZENON,\n\n Plaintiff, Appellant,\n\... | LYNCH | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4619837/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,620,482 | Toribio ROJAS-MEDINA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. | Rojas-Medina v. United States | 2019-05-16 | 18-1150P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Selya, Lynch", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1150\n\n TORIBIO ROJAS-MEDINA,\n\n Petitioner, Appellant,... | TORRUELLA | SELYA | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4620482/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,620,990 | Valentine UNDERWOOD, Plaintiff, Appellee, v. Patrick BARRETT; Anthony Catalano; Jeffrey Clement; Brian Devlin ; Michael McDonald; Anthony Falciano; Leo Marchand ; Stuart McCulloch; William Shugrue, Defendants, Appellants, Douglas Bower ; Correctional Officer Sweets, F/K/A John Doe (Sweets); Donald Denomme; Jeffrey Fish... | Underwood v. Barrett | 2019-05-17 | 16-1725P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 16-1725\n\n VALENTINE UNDERWOOD,\n\n Plaintiff, Appellee,\n\n ... | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4620990/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,315 | Dylan O'RIORDAN, Petitioner, v. William P. BARR, Respondent. | O'Riordan v. Barr | 2019-05-22 | 17-1990P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Selya, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1990\n\n DYLAN O'RIORDAN,\n\n Petitioner,... | TORRUELLA | SELYA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622315/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,316 | C.D., BY AND THROUGH Her Parents and Next Friends, M.D. and P.D.; M.D.; P.D., Plaintiffs, Appellants, v. NATICK PUBLIC SCHOOL DISTRICT; Bureau of Special Education Appeals, Defendants, Appellees. | C.D. by and Through M.D. v. Natick Public School District | 2019-05-22 | 18-1794P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lynch, Kayatta", "parties": "", "opinions": [{"author": "the Judge David L. Bazelon Center for Mental Health Law", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1794\n\n C.D., by and through her Parents and Next Friends, M... | TORRUELLA | LYNCH | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622316/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,721 | UNITED STATES of America, Appellee, v. Fulvio FLETE-GARCIA, A/K/A Fubio, A/K/A Israel Pagan Torres, Defendant, Appellant. | United States v. Flete-Garcia | 2019-05-23 | 18-1067P | U.S. Court of Appeals for the First Circuit | {"judges": "Kayatta, Souter, Selya", "parties": "", "opinions": [{"author": "SELYA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1067\n 18-1116\n\n UNITED STATES OF AMERICA,\n\n ... | KAYATTA | SOUTER | SELYA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622721/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,722 | BIOCHEMICS, INC.; John Masiz, Plaintiffs, Appellants, v. AXIS REINSURANCE COMPANY, Defendant, Appellee. John P. Raucci; Brown & Brown of New York, Inc., Defendants. | Biochemics, Inc. v. Axis Reinsurance Company | 2019-05-23 | 17-2059P | U.S. Court of Appeals for the First Circuit | {"judges": "Thompson, Kayatta, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 17-2059\n\n BIOCHEMICS, INC.; JOHN MASIZ,\n\n Plaintiffs, App... | THOMPSON | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622722/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,402 | COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC., Plaintiff, Appellant, v. Carmen Yulín Cruz SOTO, in Her Official and Personal Capacities; Municipality of San Juan, Defendants, Appellees, Spanish Broadcasting System of Puerto Rico, Inc.; Alfredo Carrasquillo, Defendants. | Comité Fiestas De La Calle San Sebastián, Inc. v. Soto | 2019-05-29 | 17-1723P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Thompson, Kayatta", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1723\n\n COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,\n\n Plain... | HOWARD | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624402/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,888 | U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, Appellee, v. Julia L. JONES, Defendant, Appellant. | U.S. Bank Trust, N.A. v. Jones | 2019-05-30 | 18-1719P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Souter, Stahl", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1719\n U.S. BANK TRUST, N.A.,\n as Trustee for LSF9 Master Participation Trust,\n\n ... | LYNCH | SOUTER | STAHL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624888/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,333 | United States v. Powell | 2019-05-31 | 17-1683P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Torruella, Kayatta, and Barron, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1683\n\n UNITED STATES OF AMERICA,\n\n ... | TORRUELLA | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625333/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,625,334 | Mauricio FABIAN-SORIANO, Petitioner, v. William P. BARR, United States Attorney General, Respondent. | Fabian-Soriano v. Barr | 2019-05-31 | 18-2052P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Selya, Lynch", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-2052\n\n MAURICIO FABIAN-SORIANO,\n\n Petiti... | TORRUELLA | SELYA | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625334/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,625,335 | Kristin BLOMQUIST; Kevin Warner, Plaintiffs, Appellants, v. the HORNED DORSET PRIMAVERA, INC.; Universal Insurance Group, Inc., Third Party Plaintiffs, Appellees, Victoria Banucci; Michael Dixon; Conjugal Partnership Banucci-Dixon, Third Party Defendants. | Blomquist v. Horned Dorset Primavera, Inc. | 2019-05-31 | 17-1856P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 17-1856\n\n KRISTIN BLOMQUIST; KEVIN WARNER,\n\n Plaintiffs... | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4625335/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,615,355 | Asher Baruch LANDAU, Et Al., Petitioners-Appellees, v. Baruch EISENBERG, Respondent-Appellant, v. Zvi Arye Rheinold, Et Al., Respondents-Appellees, Yakov Berger, Et Al., Respondents. | Landau v. Eisenberg | 2019-05-01 | 17-3963 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Droney, Sullivan", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "17-3963\nLandau v. Rheinold\n\n\n In the\n United States Court of Appeals\n For the Second Circuit\n\n ... | KATZMANN | DRONEY | SULLIVAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615355/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,615,953 | Genego v. Barr | 2019-05-02 | 16-867 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: CALABRESI and POOLER, Circuit Judges, and RAMOS, District Judge.", "parties": "", "opinions": [{"author": "POOLER, Circuit Judge:", "type": "010combined", "text": "16‐867 \n Genego v. Barr \n \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SE... | CALABRESI | POOLER | RAMOS | 1 | {"CALABRESI": ", Circuit", "POOLER": ", Circuit", "RAMOS": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615953/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,443,979 | Kwei GENEGO, aka Cyril Genego v. William P. BARR, United States Attorney General | Genego v. Barr | 2019-05-02 | Docket No. 16-867; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Calabresi, Pooler, Ramos", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415413/", "author_raw": ""}]} | CALABRESI | POOLER | RAMOS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443979/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,529 | UNIVERSAL INSTRUMENTS CORPORATION, Plaintiff-Counter-Defendant-Appellant, v. MICRO SYSTEMS ENGINEERING, INC., Missouri Tooling & Automation, Inc., Defendants-Counter-Claimants-Appellees. | Universal Instruments Corp. v. Micro Sys. Eng'g, Inc. | 2019-05-08 | Docket 17-2748-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Walker, Chin, Keenan", "parties": "", "opinions": [{"author": "CHIN, Circuit Judge:", "type": "010combined", "text": "17‐2748‐cv\nUniversal Instruments Corp. v. Micro Sys. Engʹg, Inc.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUI... | WALKER | CHIN | KEENAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617529/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,530 | United States v. Evans | 2019-05-08 | 17-2245-cr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge.", "parties": "", "opinions": [{"author": "DEBRA ANN LIVINGSTON, Circuit Judge:", "type": "010combined", "text": "17‐2245‐cr \nUnited States v. Evans \n \n UNITED STATES COURT OF APPEALS \n F... | WESLEY | LIVINGSTON | CRAWFORD | 1 | {"WESLEY": ", Circuit", "LIVINGSTON": ", Circuit", "CRAWFORD": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617530/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,617,531 | Benjamin J. ASHMORE, Sr., Plaintiff-Appellant, Barbara A. Edwards, Chapter 7 Trustee of the Bankruptcy Estate of Benjamin Jeffrey Ashmore, Plaintiff, v. CGI GROUP, INC., CGI Federal, Inc., Defendants-Appellees. | Ashmore v. Cgi Grp., Inc. | 2019-05-08 | Docket 18-2392-cv; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Lynch, Hall", "parties": "", "opinions": [{"author": "GERARD E. LYNCH, Circuit Judge:", "type": "010combined", "text": "18-2392-cv\nAshmore v. CGI Group\n\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n ... | JACOBS | LYNCH | HALL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617531/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,999 | United States v. Ronald EVANS, Tashine Knighter | United States v. Evans | 2019-05-08 | No. 17-2245-cr; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Crawford, Livingston, Wesley", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415433/", "author_raw": ""}]} | CRAWFORD | LIVINGSTON | WESLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443999/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,617,987 | Juan Carlos SANTANA-FELIX, Petitioner, v. William P. BARR, United States Attorney General Respondent. | Santana-Felix v. Barr | 2019-05-09 | 17-3850-ag | U.S. Court of Appeals for the Second Circuit | {"judges": "Walker, Chin, Sullivan", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "17‐3850‐ag\nSantana‐Felix v. Barr\n BIA\n ... | WALKER | CHIN | SULLIVAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4617987/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,579 | IQ DENTAL SUPPLY, INC., Plaintiff-Appellant, v. HENRY SCHEIN, INC., Patterson Companies, Inc., Benco Dental Supply Company, Defendants-Appellees. | IQ Dental Supply, Inc. v. Henry Schein, Inc. | 2019-05-10 | 18-175-cv; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Walker, Jacobs, Pooler", "parties": "", "opinions": [{"author": "No. 17-cv-4834 - Brian M. Cogan, Judge", "type": "010combined", "text": "18‐175‐cv\n IQ Dental Supply, Inc. v. Henry Schein, Inc.\n\n 1\n\n 2 In the\n 3 United States Court of Appeals\n 4 ... | WALKER | JACOBS | POOLER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618579/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,936 | Chike Abayomi THOMPSON, AKA Chike Thompson, Petitioner, v. William P. BARR, United States Attorney General, Respondent. | Thompson v. Barr | 2019-05-13 | Docket 17-3494-ag; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Kearse, Wesley, Chin", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "17‐3494‐ag\nThompson v. Barr\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n August... | KEARSE | WESLEY | CHIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618936/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,618,937 | Alexander A. BENZEMANN, Plaintiff-Appellant, v. HOUSLANGER & ASSOCIATES, PLLC, Todd E. Houslanger, New Century Financial Services, Defendants-Appellees, Citibank N.A., Defendant. | Benzemann v. Houslanger & Assocs., PLLC | 2019-05-13 | 18-1162-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Walker, Cabranes", "parties": "", "opinions": [{"author": "Southern District of New York (Naomi Reice Buchwald, Judge)", "type": "010combined", "text": "18‐1162‐cv\nBenzemann v. Houslanger & Assocs., PLLC\n\n\n\n\n In the\n United States Court of Ap... | KATZMANN | WALKER | CABRANES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4618937/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,621,972 | Entesar Osman KASHEF, Alfadel Mosabal, Abubakar Abakar, Siama Abdelnabi Hamad, Abbo Ahmed Abakar, Hawa Mohamed Omar, Jane Doe, Nyanriak Tingloth, Reverend Anderia Lual, Nicolas Hakim Lukudu, Turjuman Ramadan Adam, Johnmark Majuc, Joseph Jok, Halima Samuel Khalifa, Ambrose Martin Ulau, Sandi (Sunday) Georgari Marjan, Sh... | Kashef v. BNP Paribas S.A. | 2019-05-22 | 18-1304-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Sack, Parker, Chin", "parties": "", "opinions": [{"author": "BARRINGTON D. PARKER, Circuit Judge:", "type": "010combined", "text": "18-1304-cv\n Kashef v. BNP Paribas S.A.\n\n\n 1 In the\n 2 United States Court of Appeals\n 3 ... | SACK | PARKER | CHIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4621972/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,548 | UNITED STATES of America, Appellant, v. John PAULING, A/K/A JJ, Defendant-Appellee. | United States v. Pauling | 2019-05-23 | Docket 17-2539-cr; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Kearse, Chin", "parties": "", "opinions": [{"author": "CHIN, Circuit Judge:", "type": "010combined", "text": "17‐2539‐cr\nUnited States v. Pauling\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n ... | KATZMANN | KEARSE | CHIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622548/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,622,549 | FRESNO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Plaintiff-Appellee, v. ISAACSON/WEAVER FAMILY TRUST, Objector-Appellant. | Fresno Cnty. Employees' Ret. Ass'n v. Isaacson/Weaver Family Trust | 2019-05-23 | 17-2662-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Pooler, Wesley", "parties": "", "opinions": [{"author": "POOLER, Circuit Judge:", "type": "010combined", "text": "17‐2662‐cv\nFresno Cty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Family Tr.\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ... | JACOBS | POOLER | WESLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4622549/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,032 | Michelet CHARLES, Carol Small, Plaintiffs-Appellants, v. ORANGE COUNTY, State of New York, Orange County Sheriff's Department, Orange County Department of Mental Health, Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in Her Individual Capacity, Defendants-Appellees, Nicole Kaye, Clinic Di... | Charles v. Orange County | 2019-05-24 | 17-3506-pr; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Lynch, Hall, Bolden", "parties": "", "opinions": [{"author": "GERARD E. LYNCH, Circuit Judge:", "type": "010combined", "text": "17-3506-pr\nCharles v. Orange County\n\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n\n ... | LYNCH | HALL | BOLDEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623032/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,623,933 | Brenda ESTRELLA, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee. | Estrella v. Berryhill | 2019-05-29 | 17-3247-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Chin, Kaplan, Wesley", "parties": "", "opinions": [{"author": "WESLEY, Circuit Judge:", "type": "010combined", "text": "17‐3247‐cv\nEstrella v. Berryhill\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n ___... | CHIN | KAPLAN | WESLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4623933/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,558 | Marvin WASHINGTON, Dean Bortell as Parent of Infant Alexis Bortell, Jose Belen, Sebastien Cotte as Parent of Infant Jagger Cotte, and Cannabis Cultural Association, Inc. Plaintiffs-Appellants, v. William Pelham BARR in His Official Capacity as United States Attorney General, United States Department of Justice, Uttam D... | Washington v. Barr | 2019-05-30 | Docket 18-859-cv; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Calabresi, Rakoff", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888610/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/... | JACOBS | CALABRESI | RAKOFF | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624558/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,559 | Lindsey A. KIDD, Plaintiff-Appellant, v. THOMSON REUTERS CORPORATION, Defendant-Appellee. | Kidd v. Thomson Reuters Corp. | 2019-05-30 | 17-3550; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Calabresi, Droney, Underhill", "parties": "", "opinions": [{"author": "DRONEY, Circuit Judge:", "type": "010combined", "text": "17‐3550\n Kidd v. Thomson Reuters Corp.\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second... | CALABRESI | DRONEY | UNDERHILL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624559/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,624,846 | Washington v. Barr | 2019-05-30 | 18-859-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.", "parties": "", "opinions": [{"author": "GUIDO CALABRESI, Circuit Judge:", "type": "010combined", "text": "18-859-cv\nWashington et al. v. Barr et al.\n\n\n\n 1\n ... | JACOBS | CALABRESI | RAKOFF | 1 | {"JACOBS": ", Circuit", "CALABRESI": ", Circuit", "RAKOFF": ", District"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624846/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,624,847 | AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY, Central Intelligence Agency, United States Department of Defense, United States Department of Justice, United States Department of State, Defendants-Appellees. | Am. Civil Liberties Union v. Nat'l Sec. Agency | 2019-05-30 | 17-3399-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Livingston, Schofield", "parties": "", "opinions": [{"author": "Judge", "type": "010combined", "text": "17‐3399‐cv\nAm. Civil Liberties Union v. Nat’l Sec. Agency\n\n\n\n\n In the\n United States Court of Appeals\n f... | CABRANES | LIVINGSTON | SCHOFIELD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4624847/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,615,461 | United States v. Bernard Greenspan | 2019-05-01 | 17-2458 | U.S. Court of Appeals for the Third Circuit | {"judges": "Present: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges 1.", "parties": "", "opinions": [{"author": "Circuit Judge", "type": "010combined", "text": "UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\n April 24, 2019\n No. 17-2548\... | HARDIMAN | KRAUSE | BIBAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4615461/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,616,172 | Jennifer SWEDA; Benjamin A. Wiggins; Robert L. Young ; Faith Pickering; Pushkar Sohoni; Rebecca N. Toner, Individually and as Representatives of a Class of Participants and Beneficiaries on Behalf of the University of Pennsylvania Matching Plan, Appellants v. UNIVERSITY OF PENNSYLVANIA; Investment Committee; Jack Heuer | Jennifer Sweda v. University of Pennsylvania | 2019-05-02 | 17-3244 | U.S. Court of Appeals for the Third Circuit | {"judges": "Fisher, Roth", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888445/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opi... | FISHER | ROTH | FISHER | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4616172/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 5 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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